HIGH COURT OF AUSTRALIA
GLEESON CJ
KIRBY, HAYNE, CALLINAN AND CRENNAN JJLEICHHARDT MUNICIPAL COUNCIL APPELLANT
AND
LESLIE MONTGOMERY RESPONDENT
Leichhardt Municipal Council v Montgomery [2007] HCA 6
27 February 2007
S188/2006ORDER
1. Appeal allowed;
2.Set aside so much of paragraph 1 of the orders of the Court of Appeal of the Supreme Court of New South Wales made on 8 December 2005 as dismissed the appeal to that Court;
3.Remit the matter to the Court of Appeal of the Supreme Court of New South Wales for further hearing; and
4. The appellant to pay the respondent's costs of the appeal to this Court.
On appeal from the Supreme Court of New South Wales
Representation
P R Garling SC with R S Sheldon for the appellant (instructed by Phillips Fox)
G T W Miller QC with A R Reoch for the respondent (instructed by Teakle Ormsby Conn)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Leichhardt Municipal Council v Montgomery
Torts – Negligence – Duty of care – Roads authority – Independent contractor employed by roads authority to perform work on public road – Work not extra-hazardous – Independent contractor performed work negligently – Road user injured – Whether roads authority owed road user a non-delegable duty of care – Common features of relationships attracting non-delegable duties of care in common law of Australia – Whether existence of non-delegable duty of care consistent with Brodie v Singleton Shire Council (2005) 206 CLR 512 – Whether exception to general rule that a party is not liable for the negligence of an independent contractor.
Statutes – Interpretation – Roads Act 1993 (NSW) – Nature of powers given to roads authority – Power of roads authority to carry out road work – Right of member of the public to pass along public road – Whether statutory scheme evinced an intention that roads authority owed road user a non-delegable duty of care – Whether statutory scheme inconsistent with existence of a non-delegable duty – Significance of statute for applicable rule of the common law.
Words and phrases – "non-delegable duty of care", "highway rule", "non-feasance rule".
Roads Act 1993 (NSW), ss 5, 7, 71, 145, 146.
GLEESON CJ. The appellant Council was the roads authority, within the meaning of the Roads Act 1993 (NSW), for Parramatta Road, Leichhardt. That road is one of Australia's oldest and busiest public highways, and passes through densely populated suburbs of Sydney. On both sides of the road there are footpaths which, by definition, are part of the road for the purposes of the Roads Act. The Roads Act vested the road in the appellant. Section 71 conferred upon the appellant a power to carry out work on the road. The appellant engaged a contractor, Roan Constructions Pty Limited (Roan Constructions), to perform work on the footpath. There is nothing unusual about that. Local councils commonly use their own staff for routine road maintenance, but they also commonly engage outside contractors to undertake substantial road works. The work on the footpath was in progress in April 2001. It was being carried out between 7.30 pm and 5.30 am on four nights per week. No doubt the restricted hours were intended to accommodate, as far as possible, the heavy pedestrian traffic. Part of the specifications for the work provided for artificial grass or carpet to be placed over the top of the disturbed area to provide clean access to commercial properties.
On an evening in April 2001, the respondent, Mr Montgomery, was walking along part of the footpath on which Roan Constructions had been working. He walked across some carpet that had been laid by Roan Constructions' employees. The trial judge found that the carpet had been placed carelessly over a telecommunications pit which had a broken cover. The respondent fell into the pit and suffered personal injuries.
On the trial judge's finding about the conduct of Roan Constructions' employees, that company was clearly liable to the respondent. The respondent had sued both Roan Constructions and the appellant. The claim against Roan Constructions was compromised before hearing, and the case proceeded against the appellant. This appeal is concerned with the question of the appellant's liability to the respondent. The primary judge found the appellant liable. She assessed damages at an amount in excess of that for which the claim against Roan Constructions had been compromised, and adjusted the damages to allow for the amount received from Roan Constructions.
The respondent, in his case against the appellant, set out to establish fault on the part of officers of the appellant. Such alleged fault was not the subject of any finding by the primary judge or, later, by the Court of Appeal. Both courts accepted the respondent's alternative submission, which was recorded by the primary judge as being "that the council owed to the plaintiff a non delegable duty of care, notwithstanding the fact that the footpath reconstruction works ... were being carried out by a contractor ... Roan Constructions Pty Ltd".
In the Court of Appeal, there was an unsuccessful challenge to the finding that employees of Roan Constructions had negligently covered the pit with carpet at a time when the pit cover was broken. That issue is not the subject of this appeal. The Court of Appeal agreed with the primary judge that, there having been negligence on the part of Roan Constructions' employees, the appellant Council was liable without any need for the respondent to show fault on the part of Council officers. Following a line of English authority[1], and earlier decisions of the New South Wales Court of Appeal[2], Hodgson JA, with whom Mason P and McColl JA agreed, said:
"[W]here a road authority engages a contractor to do work on a road used by the public, such as to involve risk to the public unless reasonable care is exercised, the road authority has a duty to ensure reasonable care is exercised; and the road authority will be liable if the contractor does not take reasonable care. However, the road authority will not be liable for casual or collateral acts of negligence by the contractor."
[1]Hardaker v Idle District Council [1896] 1 QB 335; Penny v Wimbledon Urban District Council [1899] 2 QB 72; Holliday v National Telephone Company [1899] 2 QB 392; Salsbury v Woodland [1970] 1 QB 324; Rowe v Herman [1997] 1 WLR 1390.
[2]Roads & Traffic Authority v Scroop (1998) 28 MVR 233; Roads & Traffic Authority (NSW) v Fletcher (2001) 33 MVR 215.
A conclusion that, in given circumstances, a defendant who is sued in negligence owed a duty going beyond a duty to exercise reasonable care to avoid injury (or injury of a certain kind) to a plaintiff, and extending to a duty to ensure that reasonable care to avoid injury to the plaintiff was exercised, is commonly described as a conclusion that a defendant was under a non-delegable duty of care to a plaintiff. It is a proposition of law concerning the nature or content of the duty of care[3]. A duty of this nature involves what Mason J described in Kondis v State Transport Authority[4] as "a special responsibility or duty to see that care is taken". Such a duty enables a plaintiff to outflank the general principle that a defendant is not vicariously responsible for the negligence of an independent contractor. The present case provides an example. No one doubted that, if causative negligence on the part of Council employees had been established, the Council would have been liable. No one doubted that the finding of causative negligence on the part of Roan Constructions' employees meant that Roan Constructions was liable. However, there being no suggestion of any fault in the choice of Roan Constructions as a contractor, if it had not been for the special duty held (as a matter of law) to exist, the appellant would not have been liable for an injury caused only by the negligence of Roan Constructions' employees.
[3]cf Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540 at 585 [106].
[4](1984) 154 CLR 672 at 687.
The appellant submits that the primary judge, and the Court of Appeal, erred in law in holding that the appellant was under a special responsibility or duty of the kind described above, and that the appellant's duty was the ordinary duty, that is to say, a duty to take reasonable care to prevent physical injury to the respondent. That duty may have embraced such matters as the terms of any necessary approvals or instructions in relation to the work, undertaking any necessary supervision, warning pedestrians and other road users of hazards, and like matters. There were allegations of failure on the part of the appellant, through its officers, to take reasonable care in relation to some such matters, but those allegations were left unresolved. If the appellant is correct in its argument about the nature of the duty it owed to the respondent it will be necessary for the matter to be remitted for further consideration on that basis.
In considering the question of non-delegable duties of care it is convenient to put to one side other questions of law that may arise concerning the nature, or content, of a duty of care. Such questions might arise because of the kind of injury suffered by the plaintiff, or the circumstances of that injury, or the relationship between the parties, or the responsibilities of the defendant. For example, in Graham Barclay Oysters Pty Ltd v Ryan[5] actions were brought against a grower of oysters, a distributor of oysters, a local council and the State. As against the grower and the distributor, it was a product liability case. The defendants, who produced and supplied oysters, owed a duty to take reasonable care to avoid injury to consumers. The issue was one of breach; an issue of fact. As against the council and the State, however, the issue was one of law. What would it have meant to say that the State of New South Wales owed a duty to take reasonable care to avoid injury to consumers of oysters? If a duty were formulated in that fashion, what would be the issues of fact to be decided on the question of breach? If there were a trial by jury, what matters would a judge direct a jury to consider? In a broadly political sense, it is plausible to assert that a government owes a duty to take care of its citizens, but when it comes to formulating a duty for the purposes of a claim for negligence, a duty expressed at that level of abstraction would lack practical content. In any action in negligence, a proposition about a duty of care must be capable of being expressed in a manner that would enable a judge to direct a jury how to set about deciding whether there had been a breach. This is not difficult in well established areas such as litigation arising out of industrial accidents, motor vehicle accidents, occupiers' liability or professional negligence. It may be otherwise, however, in cases which lie at the boundaries of the law of negligence. There, the separation of issues of law (affecting duty) from issues of fact (affecting breach) may be more problematic. (In this context I include among issues of fact questions of normative judgment that often affect decisions about reasonableness). The decreasing use of juries in many Australian jurisdictions tends to obscure distinctions between questions of duty and questions of breach. Questions that would need to be kept separate at a jury trial may merge, or at least overlap, in the reasoning of a judge sitting alone. In this appeal, however, it is clear that we are concerned only with a question of law, that is, the nature of the duty of care owed by the appellant to the respondent.
[5](2002) 211 CLR 540.
In practice, the difference between a duty to take reasonable care and a duty to ensure that reasonable care is taken matters where it is not an act or omission of the defendant, or of someone for whose fault the defendant is vicariously responsible, that has caused harm to the plaintiff, but the act or omission of some third party, for whose fault the defendant would not ordinarily be vicariously responsible. If a negligent act or omission is that of a defendant, or a person for whose fault the defendant is vicariously responsible (such as an employee), no problem arises. Again, if the nature of a defendant's responsibility is such that it can be discharged lawfully or properly only by the defendant personally, an attempted delegation would be irrelevant. Some responsibilities are non-delegable in the sense that it is of their essence that they be performed by a particular person, perhaps because of trust or confidence reposed in that person. In some cases, a duty to take care involves a duty to act personally. That kind of non-delegability should not be confused with a case where the engagement of a third party to perform a certain function is consistent with the exercise of reasonable care by a defendant, but the defendant's legal duty is not merely to exercise reasonable care but also (if a third party is engaged) to ensure that reasonable care is taken. In such a case, the third party's failure to take care will result in breach of the defendant's duty. The legal consequence is that the circumstance that the third party is an independent contractor does not enable the defendant to avoid liability. It is because of its practical effect of outflanking the general rule that a defendant is not vicariously responsible for the fault of an independent contractor that the identification of this special responsibility or duty is important.
In the exercise of statutory functions, non-delegability of the first kind (strict non-delegability) would arise, for example, where a power or duty was conferred in terms, or in a context, such that it had to be performed or exercised personally by the repository of the power or duty or, if the repository were a corporation or other legal entity, by that corporation or entity. Non-delegability of the second kind would arise where there was nothing to prevent the engagement of a third party to perform the function, but it appeared from the terms of the statute that the legislature intended the repository of the power or duty to have a responsibility for ensuring the exercise of reasonable care even if a third party were engaged to perform the function. That would involve a question of statutory construction.
In Brodie v Singleton Shire Council[6], I attached importance to the consideration that the so-called non-feasance rule of immunity of highway authorities was itself a rule of statutory construction, governing the approach by which courts decided whether a statute conferring a power, or imposing a duty, to maintain or repair public roads creates, or denies, or is consistent or inconsistent with, civil liability to an injured road user. That was in a dissenting judgment, but the relationship between statute and common law in this area of public liability is undeniable. This Court held that the non-feasance rule is no longer part of the common law of Australia. It did not, however, doubt the relevance of statute in determining the existence and nature of a roads authority's duty of care to road users. After Brodie, State legislatures reinstated the distinction between misfeasance and non-feasance, while modifying the pre-existing law. For example, in New South Wales (the State with which Brodie was concerned) the Civil Liability Act 2002 (NSW) by s 45 enacted what the Act described as a "special non-feasance protection for roads authorities". A roads authority is not liable for harm arising from failure to carry out road work unless it had actual knowledge of the particular risk the materialisation of which resulted in the harm. The potential liability of roads authorities to road users, with its implications for government revenues, is a matter of obvious legislative concern. The appellant submits that the reasoning of the majority in Brodie has undermined fatally the authorities on which the respondent relied successfully in the present case. In considering whether that is so, the powers and responsibilities conferred on the appellant under the Roads Act require examination.
[6](2001) 206 CLR 512 at 533 [33].
There is nothing in the Roads Act which makes this a case of what I have called strict non-delegability. Section 71 provides that a roads authority "may carry out road work on any public road for which it is the roads authority". This takes the form of a discretionary power. Having regard to the well-known practice of the engagement by public authorities of independent contractors it would have been surprising to find in the Roads Act any express or implied statutory requirement that roads authorities undertake road construction and maintenance only through their own employees. In practice, such a requirement would be absurd. There is nothing in the Act to that effect. It will be necessary to return to the statute in considering the broader concept of non-delegability. Before doing so, however, it is convenient to say something about the special duty of care postulated, and its past application to roads authorities.
In Kondis v State Transport Authority[7], Mason J, after describing the various circumstances in which the law imposed a special, non-delegable, duty of care, explained the rationale as follows:
"The element in the relationship between the parties which generates a special responsibility or duty to see that care is taken may be found in one or more of several circumstances. The hospital undertakes the care, supervision and control of patients who are in special need of care. The school authority undertakes like special responsibilities in relation to the children whom it accepts into its care. If the invitor be subject to a special duty, it is because he assumes a particular responsibility in relation to the safety of his premises and the safety of his invitee by inviting him to enter them. And in Meyers v Easton the undertaking of the landlord to renew the roof of the house was seen as impliedly carrying with it an undertaking to exercise reasonable care to prevent damage to the tenant's property. In these situations the special duty arises because the person on whom it is imposed has undertaken the care, supervision or control of the person or property of another or is so placed in relation to that person or his property as to assume a particular responsibility for his or its safety, in circumstances where the person affected might reasonably expect that due care will be exercised. As we have seen, the personal duty which has been recognized in the other cases which I have discussed, such as Dalton v Angus, may rest on rather different foundations which have no relevance for the present case."
[7](1984) 154 CLR 672 at 687. It is noteworthy, although presently irrelevant, that Mason J's references to the liability of an invitor preceded Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479.
The reference to Dalton v Angus[8] is significant. In that case, Lord Blackburn had said that "a person causing something to be done, the doing of which casts on him a duty, cannot escape from the responsibility attaching on him of seeing that duty performed by delegating it to a contractor"[9]. Mason J said that it was impossible to regard that statement as having general application to the ordinary case in which a duty of care is owed, and explained Dalton v Angus as a case of nuisance where a landowner and a contractor were held liable for the actions of a sub-contractor in carrying out excavations which caused subsidence on adjoining land[10]. Mason J's view that cases like Dalton v Angus rested on rather different foundations from those of the cases of non-delegable duty referred to earlier in the paragraph ties in with what has been said in England about the responsibility of roads authorities in the area for which they were generally regarded as liable, that is, misfeasance.
[8](1881) 6 App Cas 740.
[9](1881) 6 App Cas 740 at 829.
[10](1984) 154 CLR 672 at 682.
In Salsbury v Woodland[11], Widgery LJ referring to "dangers created in a highway" said:
"There are a number of cases on this branch of the law, a good example of which is Holliday v National Telephone Co ... These, on analysis, will all be found to be cases where work was being done in a highway and was work of a character which would have been a nuisance unless authorised by statute. It will be found in all these cases that the statutory powers under which the employer commissioned the work were statutory powers which left upon the employer a duty to see that due care was taken in the carrying out of the work, for the protection of those who passed on the highway. In accordance with principle, an employer subject to such a direct and personal duty cannot excuse himself, if things go wrong, merely because the direct cause of the injury was the act of the independent contractor."
[11][1970] 1 QB 324 at 338.
Holliday v National Telephone Company[12] was a case about work undertaken by a telephone company laying telephone wires on a street. The Lord Chancellor, Lord Halsbury said[13]:
"There was here an interference with a public highway, which would have been unlawful but for the fact that it was authorized by the proper authority. The telephone company so authorized to interfere with a public highway are, in my opinion, bound, whether they do the work themselves or by a contractor, to take care that the public lawfully using the highway are protected against any act of negligence by a person acting for them in the execution of the works."
That passage, it may be noted, refers to an obligation "to take care".
[12][1899] 2 QB 392.
[13][1899] 2 QB 392 at 398-399.
Salsbury v Woodland and Holliday v National Telephone Company were among the English authorities cited by Hodgson JA in the Court of Appeal in this case. He also referred to Hardaker v Idle District Council[14], which concerned a district council constructing a sewer under statutory powers, and damaging a nearby house, and Penny v Wimbledon Urban District Council[15], which concerned a district council repairing a highway. In the former case, Dalton v Angus was applied[16]. In the latter case, the former case was followed[17]. That this line of authority continues to apply in England appears from what was said in 1997 by Simon Brown LJ (with whom Morritt LJ and Sir Brian Neill agreed) in Rowe v Herman[18]. His Lordship cited the observations of Widgery LJ in Salsbury v Woodland set out above. Evidently, the statutory abolition in the United Kingdom of the non-feasance rule was regarded as irrelevant to this issue.
[14][1896] 1 QB 335.
[15][1899] 2 QB 72.
[16][1896] 1 QB 335 at 345.
[17][1899] 2 QB 72 at 77.
[18][1997] 1 WLR 1390 at 1393.
We are not here concerned with the non-delegable duty that arises from the conduct of extra-hazardous activities. When, in Burnie Port Authority v General Jones Pty Ltd[19], this Court decided that the rule in Rylands v Fletcher should be treated as subsumed in the ordinary law of negligence, part of the justification advanced for that decision was the protection afforded, within the law of negligence, by the concept of non-delegable duty[20]. Road works could in some circumstances involve an extra-hazardous activity, but that is not this case.
[19](1994) 179 CLR 520.
[20](1994) 179 CLR 520 at 550-554.
The possibility of a special duty of care falling upon roads authorities extending beyond a duty to take reasonable care to a duty to see that reasonable care is taken, is accepted in North America[21]. In Lewis v British Columbia[22], in 1997, the Supreme Court of Canada held that the statutory powers exercised by the British Columbia Ministry of Transportation and Highways, which employed an independent contractor to remove dangerous rocks beside a highway, were such that the Ministry was under a duty to ensure that its independent contractor took reasonable care. The Supreme Court attached importance to a statutory provision that not only placed the contractor's work under the Ministry's control, but also required the Ministry to direct the work[23]. This provision was interpreted to mean that the Ministry was required to conform "to a statutory duty to personally direct [the] works", a duty imposed in the interests of public safety.
[21]Prosser and Keeton on the Law of Torts, 5th ed (1984) at 511; Restatement of Torts, 2d, vol 2, Ch 15, Topic 2: "Harm Caused by Negligence of a Carefully Selected Independent Contractor" at 394 (1965).
[22][1997] 3 SCR 1145.
[23][1997] 3 SCR 1145 at 1161 [25].
At the centre of this problem there is a question of statutory construction. The common law should define the duty of care to which a roads authority is subject by reference to the nature of the statutory powers given to the authority, and the legislative intendment discernible from the terms in which those powers are granted, considered in the light of the purposes for which they are conferred.
The first object of the Roads Act, stated in s 3, is to set out the rights of members of the public to pass along public roads. The first substantive provision of the Act is s 5, which provides that a member of the public is entitled as of right to pass along a public road whether on foot, in a vehicle or otherwise. Roads authorities are provided for by s 7. They are to have the functions conferred on them by the Act. Part 6 of the Act deals with road works. These may be carried out by roads authorities. Roads authorities are required, in certain circumstances, to obtain approval for works from the Roads and Traffic Authority. By definition, road work includes any kind of work, building or structure (such as, for example, a roadway, footway, bridge or tunnel) that is constructed or installed on or in the vicinity of a road for the purpose of facilitating the use of the road as a road. Section 71 empowers a roads authority to carry out road work. Since such work will commonly affect the public right declared by s 5, this provision authorises what otherwise may be a nuisance. Roads authorities may construct tunnels or bridges (s 78). These, of course, may be major works, and often are undertaken by independent contractors who would be expected to apply extensive resources and expertise, including expertise that would not be available to a local council. In the present case we are concerned with a fairly basic form of construction, but operations within the purview of the Act include some which require a high level of technical skill. Section 145 vests a public road in a local government area in fee simple in the appropriate roads authority. Section 146 provides that the dedication of land as a public road does not constitute the owner of the road as an occupier of land.
It is consistent with that statutory scheme to conclude that there is a duty in a roads authority to take reasonable care to prevent physical injury to a person such as the respondent from the carrying out of road works. It is also consistent with the statutory scheme to conclude that, if an independent contractor is engaged to perform such works, the roads authority remains under a "personal" duty to take reasonable care to prevent such injury, and that such duty is not discharged merely by exercising care in the selection of the contractor. Reasonable care on the part of the roads authority may well involve a certain level of scrutiny of the contractor's plans and supervision of the contractor's activities. It is a different thing to say that the legislation imposes, or is consistent with the imposition, of a duty to ensure that no employee of the independent contractor act carelessly.
This raises a more general question concerning non-delegable duties. A "special" responsibility or duty to "see" or "ensure" that reasonable care is taken by an independent contractor, and the contractor's employees, goes beyond a duty to act reasonably in exercising prudent oversight of what the contractor does. In many circumstances, it is a duty that could not be fulfilled. How can a hospital ensure that a surgeon is never careless? If the answer is that it cannot, what does the law mean when it speaks of a duty to ensure that care is taken? It may mean something different. It may mean that there should be an exception to the general rule that a defendant is not vicariously responsible for the negligence of an independent contractor. The present case illustrates the artificiality of attributing to the appellant a duty to ensure that care was taken. The failure to take care consisted in a workman, in the employment of Roan Constructions, placing a carpet over a telecommunications pit that had a defective cover, in circumstances where the workman should have noticed the defect. Thus a trap was created and the respondent fell into it. To speak of a local council having a duty to ensure that such an apparently low-level and singular act of carelessness does not occur is implausible. It is one thing to find fault on the part of council officers where there has been a failure to exercise reasonable care in supervising the work of a contractor, or in approving a contractor's plans and system of work. It is another thing to attribute to the council a legal duty of care which obliges the council to do the impossible: to ensure that no employee of the contractor behaves carelessly. The problem is even more acute if the source of this duty of care is said to be found in statute. One of the things that is special about this duty is that it is a duty to do the impossible. That is unlikely to have been intended by the legislature.
If the law were frankly to acknowledge that what is involved is not a breach by the defendant of a special kind of duty, but an imposition upon a defendant of a special kind of vicarious responsibility, a different problem would have to be faced. It would be necessary to identify and justify the exceptions to the general rule that a defendant is not vicariously responsible for the negligence of an independent contractor, and to provide a means by which other exceptions may be identified when they arise. That, in turn, would require an explanation of the general rule so as to account for the circumstances in which it yields to exceptions. It may be difficult to justify those circumstances in terms of fixed categories. Within those categories there may be individual cases some of which may be thought to merit making them an exception and others of which may not.
In the passage in Kondis quoted above, Mason J indicated that the personal, special duty recognised in the Dalton v Angus line of cases, which includes the highway cases, may rest on foundations rather different from the foundations of the cases he had discussed earlier. In Salsbury v Woodland, Widgery LJ said such cases rest on considerations of nuisance and statutory construction.
In Brodie, the majority in this Court[24] said that the liability of highway authorities should now be treated as covered by the modern law of negligence, into which public nuisance has been absorbed[25]. They formulated a duty of care, to apply in cases of non-feasance as well as misfeasance, being a duty to take reasonable care that the exercise of or failure to exercise the powers by such authorities does not create a foreseeable risk of harm to road users[26]. We are here concerned with a case of misfeasance. The later statutory reinstatement of a measure of protection for non-feasance is irrelevant. For reasons already explained, I do not take Brodie to deny the importance of statutory construction. The formulation of the duty of care given in Brodie, in its application to cases of misfeasance, and to a case where a roads authority has exercised its powers by engaging an independent contractor, is consistent with what I have already indicated is the construction I would place upon the Roads Act. It is not a special duty to ensure anything; certainly not a duty to ensure that no worker behaves carelessly. It is a duty to exercise reasonable care. It is not discharged merely by engaging a reputable contractor. The exercise of reasonable care for the protection of road users, in a case where an independent contractor is engaged, may be affected by the nature of the work involved and the resources respectively available to the roads authority and the contractor. What is required of a local council which engages a major construction company to build a bridge or tunnel may differ from what is required of another council in different circumstances. The content of a requirement of reasonable care adapts to circumstances, unlike the content of a requirement to ensure that care is taken. As was mentioned earlier, in this case there is an unresolved issue about an alleged failure by the appellant's officers to exercise reasonable care.
[24]Gaudron, McHugh and Gummow JJ, with whom Kirby J agreed.
[25](2001) 206 CLR 512 at 564-570 [116]-[129].
[26](2001) 206 CLR 512 at 577 [150].
The concept of a non-delegable duty, elaborated as a duty to ensure that care is taken, may have a useful, if not entirely admirable, role in some cases involving the tort of negligence. We are concerned only with roads authorities. We are concerned particularly with the Roads Act, and the powers and responsibilities it confers. The appellant had a duty to take reasonable care, a duty that was not discharged merely by engaging the services of Roan Constructions. It did not have a duty to ensure that the employees of Roan Constructions did not behave carelessly. The basis upon which the case was decided against the appellant at first instance and in the Court of Appeal was incorrect.
The appeal should be allowed. I agree with the consequential orders proposed by Hayne J.
KIRBY J. The issue in this appeal is whether the New South Wales Court of Appeal[27] erred in refusing to set aside a judgment of the District Court of that State[28]. By that judgment, the primary judge (Quirk DCJ) upheld the entitlement of Mr Leslie Montgomery ("the respondent") to recover damages for personal injury from the appellant, Leichhardt Municipal Council ("the Council").
[27]Leichhardt Municipal Council v Montgomery [2005] NSWCA 432.
[28]Montgomery v Leichhardt Municipal Council, unreported, 1 December 2004 per Quirk DCJ.
The respondent's cause of action against the Council was pleaded solely in negligence. His recovery was based on his contention that the Council owed him a "non-delegable duty of care". That contention was based on a line of authority in the Court of Appeal concerning the ambit of the duty owed by roads authorities to users of a road, beginning with that Court's earlier decision in Roads and Traffic Authority v Scroop[29]. In that decision, the District Court held that a roads authority, causing or permitting operations on a public road, owed a non-delegable duty of care to road users, including for any negligent act or omission of an independent contractor. The holding in Scroop has been followed in several cases[30]. In applying the holding to the respondent's claim, the primary judge conformed to legal authority that was binding on her.
[29](1998) 28 MVR 233.
[30]Roads and Traffic Authority (NSW) v Fletcher (2001) 33 MVR 215; Roads and Traffic Authority (NSW) v Palmer (2003) 38 MVR 82; Ainger v Coffs Harbour City Council [2005] NSWCA 424; Coombes v Roads and Traffic Authority (NSW) [2006] NSWCA 229.
The main purpose of this appeal is to afford this Court the opportunity to consider the correctness of the Scroop line of cases. That task is not an easy one. The law governing non‑delegable duties of care has been described as a "mess"[31], comprising "a random group of cases"[32] giving rise to a basis of liability that is "remarkably under-theorised"[33]. The instances in which a non-delegable duty has been upheld have been variously labelled "an inexplicable rag-bag of cases"[34] comprising an erroneous feature of the "über tort of negligence"[35] and an "embarrassing coda" to judicial and scholarly writings on the scope of vicarious liability for wrongs done by others[36].
[31]Murphy, "The Liability Bases of Common Law Non-Delegable Duties – A Reply to Christian Witting", (2007) 30(1) University of New South Wales Law Journal (forthcoming) (hereafter Murphy, "Liability Bases").
[32]Deakin, Johnston and Markesinis, Markesinis and Deakin's Tort Law, 5th ed (2003) at 597, fn 372.
[33]Murphy, "Liability Bases".
[34]Stevens, "Non-Delegable Duties and Vicarious Liability", in Neyers, Chamberlain and Pitel (eds), Emerging Issues in Tort Law, (forthcoming) (hereafter Stevens, "Non‑Delegable Duties").
[35]Stevens, "Non-Delegable Duties".
[36]Stevens, "Non-Delegable Duties". See also McIvor, "The Use and Abuse of the Doctrine of Vicarious Liability", (2006) 35 Common Law World Review 268 at 290‑296.
Judges have been taken to task for their reluctance, or incapacity, to express a clear theory to account for the nature and ambit of non-delegable duties of care[37]. The whole field has been assailed as one involving serious defects[38], containing numerous "aberrations"[39] that have plunged this area of the law of tort into "juridical darkness" and "conceptual uncertainty"[40]. Courts of high authority have been accused of coming to the right result for the wrong reasons; or the wrong result despite adopting the right reasons[41].
[37]Murphy, "Juridical Foundations of Common Law Non-Delegable Duties", in Neyers, Chamberlain and Pitel (eds), Emerging Issues in Tort Law, (forthcoming) (hereafter Murphy, "Juridical").
[38]Murphy, "Juridical".
[39]Murphy, "Juridical".
[40]Murphy, "Juridical".
[41]Stevens, "Non-Delegable Duties".
Special leave was granted in this appeal, in the hope of clarifying the underlying rationale of tort liability for non-delegable duties beyond the somewhat Delphic endeavours offered by this Court in the past, notably by Mason J in Kondis v State Transport Authority[42].
[42](1984) 154 CLR 672 at 687. The passage is set out in the reasons of Gleeson CJ at [13].
Ordinarily, a person is not liable in law for the wrongs done by that person's independent contractors, as distinct from employees[43]. This principle has been repeatedly upheld by this Court[44], including in a case where the independent contractor was, on one view, a "representative agent"[45] or part of the "organisation"[46] of the principal[47]. Clearly, to render one person liable in law for wrongs done by another (or to impose direct and personal liability upon that other) something exceptional is required, either as a matter of established legal authority or on the basis of demonstrated legal principle or policy[48].
[43]Stevens v Brodribb Sawmilling Co PtyLtd (1986) 160 CLR 16 at 26, 35.
[44]Scott v Davis (2000) 204 CLR 333; Hollis v Vabu Pty Ltd (2001) 207 CLR 21; New South Wales v Lepore (2003) 212 CLR 511 at 580 [196]; Sweeney v Boylan Nominees Pty Ltd (t/as Quirks Refrigeration) (2006) 80 ALJR 900; 227 ALR 46.
[45]cf Colonial Mutual Life Assurance Society Ltd v Producers and Citizens Co‑operative Assurance Co of Australia Ltd (1931) 46 CLR 41.
[46]This was Denning LJ's test. See eg Stevenson Jordan and Harrison Ltd v Macdonald and Evans [1952] 1 TLR 101 at 111.
[47]Sweeney (2006) 80 ALJR 900 at 913 [61]; 227 ALR 46 at 61-62.
[48]Oceanic Sun Line Special Shipping Company Inc v Fay (1988) 165 CLR 197 at 252-254; Northern Territory v Mengel (1995) 185 CLR 307 at 347.
So far, although this Court has accepted that certain relationships give rise to a non-delegable duty of care, it has not recognised the relationship of roads authority and road user as one which does so. This Court is not bound to do so, either by the Scroop line of cases in Australia, challenged in this appeal, or by the collection of English authority to which Scroop, and its Australian successors, purport to give effect.
In order to decide the present appeal, it is therefore necessary to determine the correctness of Scroop and the local cases that have followed it. To do this, we must decide whether that line of decisions fits comfortably into the body of relevant Australian statute and common law. To assist that decision, much attention was paid, in the argument of this appeal, to the suggested reasons of principle that support the imposition of non-delegable duties of care, as a class. If there is no conceptual unity to the recognised instances of non-delegable duties in tort, repeated observations in this Court suggest that the presently recognised categories should not be expanded[49]. These observations would afford a reason for declining to extend the categories to the relationship of roads authority and road user.
[49]Reasons of Callinan J at [168] fn 240.
In my view, the liability of a roads authority to road users does not fit appropriately into the kinds of relationships that have so far been accepted in Australia as giving rise to a non-delegable duty of care. In so far as there are common features of those categories, they are not enlivened by the relationship illustrated by the present case. The appeal must therefore be allowed.
The facts, legislation and common ground
The facts: The relevant facts are now undisputed. The details are set out in the other reasons[50]. On Saturday evening, 7 April 2001, the respondent, walking three abreast with friends on a busy footpath in Leichhardt, an inner suburb of Sydney, fell into a telecommunications pit whose broken cover had been hidden from view by a carpet placed over it by employees of Roan Constructions Pty Limited ("Roan"). Roan had been engaged by the Council as a contractor to perform work on the footpath. By its employees, Roan did that work negligently. Roan was thus directly liable for such negligence to the respondent.
[50]Reasons of Gleeson CJ at [1]-[7]; reasons of Hayne J at [130]‑[135]; reasons of Callinan J at [161]-[164].
The respondent sued Roan for damages for negligence. He settled that claim for $50,000 inclusive of costs[51]. However, the respondent's statement of claim had named both Roan and the Council as defendants. Following the settlement with Roan, the primary judge proceeded to hear and determine the respondent's claim in negligence against the Council. That claim was framed in the alternative. It was based on the Council's liability for its own negligence, which was alleged to have caused, or contributed towards, the respondent's injury. It was also based on the Council's suggested non-delegable duty of care for the negligent acts of Roan in repairing the footpath. The primary judge found in favour of the respondent on the latter basis. It followed that she did not have to decide the former, alternative, claim. The primary judge adjusted the judgment entered against the Council to allow for the notional net recovery against Roan pursuant to the settlement, so as to prevent double compensation for the same damage[52].
[51]Leichhardt Municipal Council v Montgomery [2005] NSWCA 432 at [5].
[52]Montgomery v Leichhardt Municipal Council, unreported, 1 December 2004 at 30 per Quirk DCJ.
Why did the respondent settle against Roan, given that the active agency of the negligence for which he was suing was the conduct of Roan's employee in placing a carpet over a defective covering of a pit situated on a busy suburban footpath? Given the seriousness of the respondent's injuries (found to justify a judgment for more than five times that of the settlement with Roan) why did the respondent compromise his claim against the contractor? It was not, presumably, because he wanted to have his legal entitlements considered by this Court, and to assist in the clarification of the law of non-delegable duties in Australia. Nor, by inference was it because Roan was uninsured. The specification for the paving contract between the Council and Roan was in evidence. In a conventional provision, that contract expressly required:
"The contractor must carry Public Liability insurance with a minimum cover of Ten Million Dollars ($10,000,000)."
The contract also contained a provision that inferentially gave rise to the placement of the carpet by Roan's employees, although in a way that was unintended:
"Access is to be maintained to shopfronts/residences at all times. All commercial properties are to have artificial grass or carpet over the top of the road base to provide clean access."
The mysteries of the negotiations that led to the relatively modest settlement between the respondent and Roan are, of course, unknown. The only clues that are offered appear in the published reasons of the primary judge dealing with an aspect of costs[53]. According to those reasons, the settlement against Roan occurred shortly before an arbitration of the matter was heard in which the respondent's claim against the Council was unsuccessful, resulting in the hearing in the District Court. The primary judge noted that[54]:
"[A]s with all cases involving slips and falls on Council footpaths or roads, or indeed most Occupier cases, a large element of risk is involved, particularly as the state of the law has developed over the past few years."
[53]Montgomery v Leichhardt Municipal Council, unreported, 16 December 2004 at 2 per Quirk DCJ.
[54]Montgomery v Leichhardt Municipal Council, unreported, 16 December 2004 at 3 per Quirk DCJ.
Inferentially, this observation included a reference to the decision of this Court in Brodie v Singleton Shire Council and Ghantous v Hawkesbury City Council (together, "Brodie")[55], the latter adverse to a claim by a pedestrian against a local authority concerning the condition of a suburban footpath. Whatever the reasons, the practical result of the settlement with Roan was that the respondent was confined in the litigation to his legal entitlements against the Council. In the District Court, the Council was refused a belated application to join Roan in the proceedings as a cross-defendant[56].
[55](2001) 206 CLR 512 at 581-583 [163]-[168], 605-607 [244]-[248].
[56]Montgomery v Leichhardt Municipal Council, unreported, 16 December 2004 at 3 per Quirk DCJ.
All of the plaintiff's eggs were therefore in the basket labelled Scroop. But the problem with Scroop was the novelty of the legal principle which it endorsed and the attempt it afforded, against repeated decisions of this Court, to bring home liability to the Council in a case where the causative agent of the negligence relied on was not an employee of the Council but an independent contractor, Roan. Truly, if the respondent's action against the Council could succeed, it would afford the respondent a means of "outflanking the general rule" of the common law in Australia that a principal is not liable for wrongs done to a third party by an independent contractor[57].
[57]cf reasons of Gleeson CJ at [9]. See also Dalton v Angus (1881) 6 AC 740.
The legislation: Two Acts of the New South Wales Parliament need to be considered. The first is the Act, which deals with roads in the State. The relevant provisions of that Act are set out in other reasons[58].
[58]See reasons of Callinan J at [171]-[173], referring to the Act, ss 3, 5, 6, 71, 145 and 146(1).
Reference must also be made to the Civil Liability Act 2002 (NSW) now affording a special non-feasance protection to roads authorities[59]. However, the latter provision has no direct application to the present case because it was enacted in 2002, after the respondent's injuries occurred. Nor does it alter, retrospectively or at all, the doctrinal shift in the liability of highway and roads authorities for negligence, expressed by this Court in Brodie for the whole of Australia.
[59]See reasons of Callinan J at [174]‑[177].
In so far as the content of the common law is concerned, the Civil Liability Act does not affect the issues to be decided in this appeal. In this instance, the roads authority in question (the Council) had not failed to carry out road work or to consider doing so. On the contrary, the Council had decided to perform such work to the relevant portion of the "road" (the Leichhardt footpath) and had engaged Roan as its contractor to carry out such work. This was not therefore a case of "non-feasance", whether under the former common law or under provisions such as those in the new enactment. On any view, the old classification is immaterial.
Common ground: By the time these proceedings reached this Court, there was much common ground between the parties. Thus, it was agreed that:
.The Council was a "roads authority" for the purposes of the Roads Act 1993 (NSW) ("the Act"), in which the relevant "road", including the portion of footpath in question, was vested in the Council by virtue of the Act. An earlier contest, suggesting that the Roads and Traffic Authority of New South Wales was the relevant "roads authority", fell away. It need not be explored;
.The plaintiff was injured in the course of exercising a right, expressed in s 5(1) of the Act, entitling him "as of right, to pass along a public road … on foot";
.The case was not concerned with issues that may sometimes be presented by involvement of a party in extra-hazardous activities. The works undertaken by the Council and by Roan could not be so classified. That issue can likewise be put to one side[60];
.An original dispute, also litigated in the Court of Appeal, concerning the state of the lid over the pit in the footpath when the carpet was laid over it, was not pursued further. Thus, carelessness of the employees of Roan could no longer be disputed because the placement of a carpet over such a defective lid constituted a clear act of negligence on Roan's part;
.There was no suggestion in the evidence that, simply by its choice of Roan as a contractor, the Council was itself negligent. Roan was an apparently reputable and competent independent contractor and nothing in the evidence suggested otherwise; and
.Both parties accepted the change in the expression of the common law with respect to the liability of highway and roads authorities stated by this Court in Brodie[61]). Neither argued for a return to the former common law rule differentiating between the liability of such authorities for "misfeasance" and "non-feasance". In any event, this was not a case where a roads authority had done nothing. The Council had embarked on a project to upgrade the relevant stretch of a public road, namely, the footpath. It had engaged Roan as a contractor to perform the work. In the event, that work was performed negligently, in a way that caused the respondent's injuries.
[60]cf reasons of Gleeson CJ at [18].
[61](2001) 206 CLR 512.
This narrowing of the factual issues allows this Court to address the legal issue thus presented. In the given circumstances, is the Council liable in law for the acts and omissions on the part of Roan and its employees? Does such liability exist on the basis that the Council owes a non-delegable duty of care to the respondent by reason of the relationship between a public roads authority and a road user?
Defining the bases of liability
Five potential bases of liability: Potentially, five bases of liability are presented for determining whether, in accordance with the applicable law, the Council owed a duty of care to the respondent which it breached, resulting in his injuries. They are:
(1)Statutory liability of the Council: There is no provision in the Act, whether in express language or by necessary implication, that would warrant a conclusion that, in circumstances such as the present, the Council was rendered liable to the respondent by statute. It is true that, in its objects, the Act contemplates the conferral of functions on roads authorities such as the Council, including in carrying out road work[62]. Moreover, the Act vests a relevant "road" in an authority such as the Council, in fee simple[63]. However, these provisions do not impose any identified legal liability on the authority, as the road owner, beyond that of merely being "a person having the care, control and management of the road"[64]. The power to carry out road work provided by the Act[65] is no more than that. It affords the authority to perform what, in the case of a public road, would otherwise constitute a nuisance at common law. However, it does not expressly state any particular standard of performance to be observed by the Council, its employees or contractors.
No doubt, in accordance with ordinary principles, the conferral by the Act of the power to "carry out road work" would imply the grant of all privileges, discretions and capacities reasonably necessary to discharge that purpose. However, the respondent did submit that the grant of the power requires or implies perfection, or any like standard, in the carrying out of the work envisaged. At most, the grant of power implied that the roads authority in question would carry out the road work in a way that was reasonable for such an authority acting within the statutory grant: fairly, reasonably and not arbitrarily. One such way to do this, common in Australia, is by the use of the authority's employees. Another is by the engagement of independent contractors, including highly specialised contractors with skills for particular work which a roads authority does not itself have, and would not reasonably be expected to possess, amongst its own employees.
It is not unknown in other countries for the legislature to enact provisions imposing particular standards of care on roads authorities for the performance of designated road works. Thus, in England, by s 41 of the Highways Act 1980 (UK), Parliament imposed on a designated highway authority an express duty to maintain the highway. It is a defence to a claim for damages for a failure to maintain the highway in accordance with this provision for the highway authority to show that it took such care as, in all the circumstances, was reasonably required to ensure that the highway was not dangerous to traffic[66]. That defence, in turn, is not established merely by proving that the highway authority arranged for an apparently competent person to carry out or supervise the work[67]. A like duty of care has been read into Canadian highway legislation[68].
However the Act applicable to the Council's operations in New South Wales falls far short of affording a statutory basis for imposing an affirmative duty on the Council to ensure that road work is carried out without causing injury to persons such as the respondent. A statutory basis for liability in the Council is therefore unavailable.
(2)Organisational liability: A second possible basis for holding the Council liable for injury occasioned to a pedestrian by road works on a road within its designated responsibility would be to revive Lord Denning's attempt to explain the ambit of vicarious liability in terms of responsibility for persons working for and within the organisation of the defendant's business[69]. In his reasons in Kondis, Murphy J sought to rationalise the instances of non-delegable duty, identified in that case, by reference to what he called "the developing organization test". He thought that this was a conceptualisation that would "provide another basis of liability"[70]. However, so far, despite the imperfections of the conventional doctrinal underpinnings of vicarious liability, the organisation test has not gathered many supporters in Australia. Indeed, in Stevens v Brodribb Sawmilling Co Pty Ltd[71], this Court appears to have rejected it. As in other recent cases[72], this notion of liability was not revived by the parties to the present appeal, it can likewise be ignored.
(3)Representative agent liability: Nor did the respondent make any attempt to propound a basis for the vicarious liability of the Council for the torts of Roan and its employees on the footing of a "broader doctrine" of vicarious liability, such as McHugh J repeatedly expressed in this Court, including in Hollis v Vabu Pty Ltd[73]. In the light of the negative response to this suggestion, evident in the joint reasons in this Court in Sweeney v Boylan Nominees Pty Ltd (t/as Quirks Refrigeration)[74], the failure of the respondent to advance such an argument in this appeal was understandable. One day, this Court may return to McHugh J's observation in Hollis that "[i]f the law of vicarious liability is to remain relevant in the contemporary world, it needs to be developed and applied in a way that will accommodate the changing nature of employment relationships"[75]. The great expansion in recent years of the use by public authorities of contractors, and the "out-sourcing" to agents in the place of employees, suggests the possible need to reconceptualise the foundations of vicarious liability. But the present is not the case in which to do so[76].
(4)Causative negligence of the Council: The fourth way in which the liability of the Council to the respondent could be enlivened would be to prove that the respondent's injuries were directly caused, or materially contributed to, by the acts or omissions of the Council itself or those of its own employees. Such a claim was made in the respondent's pleadings. It was also the subject of written submissions, and of a notice of contention, in the Court of Appeal[77]. The respondent defensively revived that issue in this Court.
Although the Council contested the availability of the submission, I am satisfied that it was raised below. Having regard to the bases on which the primary judge and the Court of Appeal decided the respondent's entitlements, the liability of the Council for its own negligence did not have to be determined. Various ways in which such liability might have been argued were canvassed in the parties' submissions. Certainly, an officer of the Council made a number of inspections of the work being performed by Roan. Whether Roan's operations should have been roped off by the Council to prevent pedestrian access; whether such isolation would have been compatible with the need to retain customer access to the adjoining businesses; whether the Council's designated system of laying down carpet was likely to occasion the damage that arose; or whether some other system of placing boards over the disrupted footpath should have been implemented by the Council itself, are all questions that have never been decided.
Because it cannot be said that the direct liability of the Council on this footing is bound to fail, or that such arguments are futile, it is just, as the other reasons in this Court conclude, to remit the proceedings, if necessary, for determination of this as yet undecided aspect of the respondent's case. However, the exploration of all of the foregoing issues would be unnecessary if the respondent could maintain the exceptional basis upon which he succeeded at trial and in the Court of Appeal.
(5)Non-delegable duty liability: The respondent's success below was based on the conclusion, derived from Scroop, that the Council owed him a duty of care in the performance of road work on a public road rendering the Council liable if a contractor such as Roan did not take reasonable care, save where the injury to the road user was occasioned by some "casual or collateral acts of negligence by the contractor"[78]. The qualification by reference to "casual or collateral acts of negligence by the contractor" was derived by Hodgson JA from the reasons of the English Court of Appeal in Penny v Wimbledon Urban Council[79]. In that case, the roads authority's contractor had negligently left a heap of soil on the road, unlighted and unprotected, causing injury to a person who walked along the road after dark. The Council there was held liable and the exception inapplicable. By inference, the same conclusion was reached, by analogy, in the present case[80].
[62]The Act, s 3(f).
[63]The Act, s 145.
[64]The Act, s 146(1)(a).
[65]The Act, s 71.
[66]Highways Act 1980 (UK), s 58. See Stevens, "Non-Delegable Duties".
[67]Highways Act 1980 (UK), s 58(2).
[68]Lewis (Guardian ad litem of) v British Columbia [1997] 3 SCR 1145, considering Ministry of Transportation and Highways Act RSBC 1979 c 280, ss 14, 48. See also City of Vancouver v McPhalen (1911) 45 SCR 194 and reasons of Gleeson CJ at [19].
[69]Bank voor Handel en Scheepvaart NV v Slatford [1953] 1 QB 248 at 295.
[70](1984) 154 CLR 672 at 690. See also Bazley v Curry [1999] 2 SCR 534 at 548‑549 [22].
[71](1986) 160 CLR 16 at 22-29, 35-36.
[72]eg Sweeney (2006) 80 ALJR 900 at 913 [61]; 227 ALR 46 at 61-62.
[73](2001) 207 CLR 21 at 60-61 [101]-[102] per McHugh J.
[74](2006) 80 ALJR 900; 227 ALR 46.
[75](2001) 207 CLR 21 at 54 [85]. See also at 50 [72].
[76]cf Sweeney (2006) 80 ALJR 900 at 920 [104]-[105]; 227 ALR 46 at 71.
[77]Reasons of Callinan J at [165], [169].
[78]Leichhardt Municipal Council v Montgomery [2005] NSWCA 432 at [23] per Hodgson JA; Mason P concurring at [1], McColl JA concurring at [37].
[79][1899] 2 QB 72 at 76.
[80][2005] NSWCA 432 at [28].
Even though the majority in Brodie disapproved statements of principle in relation to non-feasance and misfeasance by his Honour, the following proposition stated by Dixon J in Buckle v Bayswater Road Board holds true[267]:
"Because the road is under its control, it necessarily has an opportunity denied to others for causing obstructions and dangers in highways. But when it does so, the road authority is liable, not, I think, under any special measure of duty which belongs to it, but upon ordinary principles."
[267](1936) 57 CLR 259 at 283.
The appellant was empowered under the Act, but not obliged, to undertake road works. It was not inappropriate that it engage contractors to repair the footpath on Parramatta Road. The appellant did not thereby bring itself under any non-delegable obligation of care to the respondent. Whether however, it failed to discharge some other duty remains to be considered. I would accordingly join in the orders proposed by Justice Hayne.
CRENNAN J. The appeal should be allowed. I have nothing to add to the reasons of Gleeson CJ and Hayne J, with which I agree. I agree with the consequential orders proposed by them.