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Date: Tue, 27 Feb 2007 05:30 From: Neil Foster Subject: HCA on Non-Delegable Duty; the ODG in the HCA
Dear Colleagues The High Court of Australia has now handed down its long-awaited (by some of us, at any rate!) decision in Leichhardt Municipal Council v Montgomery [2007] HCA 6. The Court (Gleeson CJ, Kirby, Hayne, Callinan & Crennan JJ, all save Crennan J delivering separate judgements) holds unanimously that a roads authority (a local council, here) does not owe a non-delegable duty of care to members of the public who may be injured by the carelessness of its contractors engaged in road work. Mr Montgomery was injured when he fell into a hole in a footpath which was covered by a cracked cover and a piece of artificial grass, left in place by contractors engaged by the Council. He succeeded in recovering damages in a settlement from the contractor, but then continued to sue the Council as jointly liable. There is an interesting divergence in the reasons offered for the conclusion. To my mind the most convincing of the judgements is that of Kirby J, who in the end articulates something of a policy behind "new" cases of NDD- that is, that they should only be found in cases where there is creation of a substantial risk, coupled with assumption of responsibility (usually only found where the plaintiff is particularly "vulnerable") - see paras [117]-[118]. Here road works were said not to be especially risky, and members of the road-using public not particularly vulnerable or especially dependent, unlike the established categories for NDD, patients/employees/pupils (and possibly prisoners) - see [123]. If members of this list who attended the Emerging Issues conference last year find this familiar, they should. Kirby J cites extensively from papers by John Murphy and Robert Stevens; indeed, whole slabs of John's paper presented in June and about to be published as a chapter in the book based on the conference, "Juridical Foundations of Common Law Non-Delegable Duties", are adopted with approval by his Honour - see eg [117]-[118]. Robert's paper in the same volume is also cited; eg at footnotes 34-36, 41, 122. Congratulations John and Robert! Of the other judgements, Gleeson CJ (with respect) offers a curious comment at [23] that to impose an NDD on a council would be to ask the council "to do the impossible" (curious because this would seem to undermine the concept of an NDD in every situation), and then concludes by suggesting at [26] that while the Council had an ordinary duty of care, it was not discharged "merely by engaging a reputable contractor" - his Honour's remarks may be directed, though they are framed more widely, to the specific question arising in this case as to whether officers of the Council had themselves been careless. Haynes J also rejected the existence of an NDD, but did so primarily on the basis that the English cases supporting such a duty (and there were a number) were decided as part of the special law on highways which included the "no liability for non-feasance" rule, and that rule (and the possibility of using the law of public nuisance in highway claims) had been over-ruled by the High Court in Brodie v Singleton Shire Council (2001) 206 CLR 512. See [148]. I must say I prefer Kirby J's view that the "highway immunity" rule has really got nothing to do with the question of NDD - see [64]-[76]. Callinan J also rejected NDD in this case; one of his reasons for doing so is that if NDD in highway cases is adopted it contains an exception for "casual or collateral" negligence of contractors, and this line is virtually impossible to draw - see [179]. Crennan J agreed with Gleeson CJ & Hayne J. Happy reading!
Regards Neil Foster
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