Date: Tue, 30 May 2006 12:29:23 +0100

From: Robert Stevens

Subject: High Court of Australia to hear non-delegable duty case

Having quickly read it, I would have thought this case quite straightforward and am surprised it requires leave. If I dig up the public highway I create a nuisance and anyone injured by the work has a claim against me. If I authorise an independent contractor to do the work for me, I similarly will be liable on the basis that his actions have been authorised by, and are attributed to, me.

If by contrast a pubic body, such as a local authority, carries out work on the highway they may well have a statutory privilege to do the work. However such privileges are rarely absolute. A privilege may be qualified so that all loss caused by the nuisance has to be paid for, although the work itself could not be stopped. Alternatively, the privilege may be qualified so that damages are payable if work is not carried out with due care (whether by the public body or by an independent contractor). The scope of the privilege is just a matter of statutory construction.

Robert Stevens
Barrister
University of Oxford

Neil Foster writes:

Dear Colleagues;

It is worth noting that the High Court of Australia has just given special leave to appeal (transcript at [2006] HCATrans 244 (19 May 2006)) from the decision of the NSW Court of Appeal in Leichhardt Municipal Council v. Montgomery [2005] NSWCA 432. The NSWCA held that a local Council in carrying out road works through a contractor owed a non-delegable duty of care to members of the public who might be injured by the carelessness of the contractor. Having just read John Murphy's excellent paper on The Juridical Foundations of Non-Delegable Duties I was left wishing that the High Court had access to a copy before making up their mind.

{Incidentally, in a case that has not gone to the HC as far as I am aware, the Victorian Court of Appeal in A D & S M McLean Pty Ltd v Meech & Anor [2005] VSCA 305 (16 December 2005) held that a land-owner who allows the agistment of animals on his property may owe a non-delegable duty of care to road-users who may be injured by the escape of the animals. See para [22] where this is said to be on the basis of Burnie Port Authority.}

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