Leichhardt Municipal Council v Montgomery

[2006] HCATrans 462

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S188 of 2006

B e t w e e n -
LEICHHARDT MUNICIPAL COUNCIL
Appellant
and
LESLIE MONTGOMERY
Respondent

GLEESON CJ
KIRBY J
HAYNE J
CALLINAN J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 30 AUGUST 2006, AT 10.23 AM

MR P.R. GARLING, SC: May it please the Court, I appear with my learned friend, MR R.S. SHELDON, for the appellant. (instructed by Phillips Fox)

MR G.T.W. MILLER, QC: May it please the Court, I appear with my learned friend, MR A.R. REOCH, for the respondent. (instructed by Teakle Ormsby Conn)

GLEESON CJ: Yes, Mr Garling.

MR GARLING: If the Court pleases. This appeal presents directly the issue as to whether a road authority owes to road users a non‑delegable duty so that it becomes liable for a casual act of negligence of its contractor.

Your Honours, in New South Wales under the Roads Act the local council is the road authority. May I take the Court to those statutory provisions. Although there have been a number of reprints, the timely reprint is No 3 but the relevant sections have not been amended since the introduction of the Act. May I notice some of those provisions. Section 5(1) of the Roads Act 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) –

In other words, pedestrians using the footpath, in this case, the footpath by the edge of Parramatta Road between Norton Street and Balmain Road in Leichhardt in Sydney was part of the public road along which members of the public were entitled as a right to pass.

KIRBY J: Is that by statute or is that ‑ ‑ ‑

MR GARLING: Section 5(1), your Honour.

CALLINAN J: It is also the common law, is it not?

MR GARLING: It is also the common law and this statute does not derogate from that common law right but makes it plain that there is that right.

KIRBY J: Is there something in 5(1) that expressly includes a footpath, because one would not normally, in ordinary parlance, consider a footpath as part of the road.

MR GARLING: The dictionary, your Honour, says that “footway” means part of a road that is set aside or forms a path or way for pedestrian traffic. This Court’s decision in Ghantous v Hawkesbury held that in that case the footpath was part of the road and therefore the question of whether the immunity of a road authority applied in respect of a footpath was appropriate to be considered in that case. Ordinarily, your Honour, certainly in New South Wales, the footpath would form part of the road reserve - the old 22 metre width road reserve that traditionally existed.

GLEESON CJ: I think we happen to be dealing with the oldest public road in Australia.

MR GARLING: That is so, your Honour.

CALLINAN J: Similarly, I think at common law there was a right of ingress and egress to people abutting on a road ‑ ‑ ‑

MR GARLING: Yes, and that is to be found, your Honour, in section 6 of this Act as well, that the owners of land adjoining the public road are entitled as of right to access. Your Honours, section 7(4) provides that:

The council of a local government area is the roads authority for all public roads within the area, other than –

freeways or Crown roads or a particular declared road. The Leichhardt Council was the road authority for this road in that area. That is not the subject of any dispute. Your Honours, section 71 of the Act, which is to be found in Part 6 dealing with road work, provides that:

A roads authority may carry out road work on any public road for which it is the roads authority and on any other land under its control.

GLEESON CJ: Is that the provision that produces the consequence that it is not a nuisance?

MR GARLING: Yes, it has the right to do so, as do a number of other bodies or statutory authorities. So utility authorities, water, gas, electricity, have a statutory right to dig up the road and the like and some telecommunication authorities under the relevant telecommunications legislation have a similar right and they are entitled, therefore, to interfere with the road without being liable in respect of nuisance.

GLEESON CJ: But if there were not a provision like section 71 or its counterpart in some other legislation dealing with other authorities, the consequence of section 5(1) would be that someone who dug up the road to interfere with the right of the public to pass and repass would be committing a nuisance?

MR GARLING: That is so, your Honour. The nature of the road authority’s ownership and the like of public roads is dealt with in sections 145 and 146 of the Act. Relevantly, section 145(3) provides that:

All public roads within a local government area (other than freeways and Crown roads) are vested in fee simple in the appropriate roads authority.

KIRBY J: Was there a danger for you in the questions and answers – the questions to you from the Chief Justice and the answers you gave that the subcontractor is committing a nuisance unless it is relevantly performing the statutory functions as the road authority?

MR GARLING: I would not put it quite that way, your Honour. I would accept – and I certainly would not accept there is any danger in any question that his Honour the Chief Justice ever puts, but ‑ ‑ ‑

HAYNE J: You will learn.

KIRBY J: You always have to watch these questions.

MR GARLING: But I would accept, your Honour, that a private contractor engaged by a road authority to undertake road work is doing so as a consequence of the statutory right that section 71, namely, have the right to undertake work, gives.

GLEESON CJ: What prompted my question was that in Salsbury v Woodland [1970] 1 QB at 338 Lord Justice Widgery said that the class of case in which there is a non‑delegable duty of care in respect of dangers created in a highway are cases which:

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.

MR GARLING: Yes, but, your Honour, a moment’s pause which we will come to would say that that in fact does not reduce the class of work on a public highway because all work that has the consequence of affecting the right to pass or repass, whether by foot or road, would fall into the category of nuisance unless permitted.

In other words, it does not actually differentiate some work from another. It, in fact, does nothing more than describe a circumstance where a road authority or a person carries out any work on a road of more than the most minor consequence.

KIRBY J: It may be a matter of looking at the diamond in two different ways, different facets, because on the one hand you could say the search is for what the common law non-delegable duty is and on the other hand you could say the search is for what the statutory scheme contemplated could be done and the only person who under the statutory scheme may carry out roadwork is the authority and insofar as someone is doing it with the authority of the authority it is the authority for the purpose of the statutory scheme, the authority itself.

MR GARLING: Yes. May I answer that question with a yes and a no, your Honour? May I firstly say, if one was searching, perhaps, for that genus of the cause of action of a breach of statutory duty, yes, I would accept that one would concentrate for a moment on the precise terms of the statute and then ask the usual questions, is that a breach for which a private right in damages would arise? Put that to one side because that is not this case. We would simply submit that the common law - that the nature and content of the duty of common law would be assisted by identification of those powers which a statutory authority has, but that does not necessarily determine the question of duty. The mere possession of the power would not necessarily carry it with it automatically, in every case, the existence of a common law duty.

We know, your Honours, that this Court has held in Brodie and Ghantous by majority that a road authority with powers similar to those in the Local Government Act in New South Wales – and may I say that these powers are broadly similar to the powers considered by this Court in Brodie and Ghantous; they were the powers under the 1919 Local Government Act – has the duty of the kind which the majority in Brodie held. The question though is somewhat different here, which is whether that duty is of the higher kind, notionally a duty to ensure that reasonable care is taken which, as Justice Gummow said in Scott v Davis is effectively a duty of strict liability, should be imposed on a road authority.

Your Honours, I was just about to invite the Court to notice section 146 of the Act. Section 145(3) vests the fee simple in the relevant road authority. Section 146(1)(a):

Except as otherwise provided by this Act, the dedication of land as a public road –

the consequence of which of course is that section 145 is called into action and the fee simple is vested in the road authority –

(a)does not impose any liability on the owner of the road that the owner would not have if the owner were merely a person having the care, control and management of the road . . .
(d)does not constitute the owner of the road as an occupier of the land . . .

(2)This section does not restrict the power of a roads authority to regulate the digging up of public roads pursuant to the provisions of any other Act.

That relates to Acts which permit other utilities to dig up the road or interfere with the road which gives the local government authority some power with respect to restoration and the like.

Your Honours, the effect of section 146 is to give some content to the nature of a local government or road authority in terms of its role with respect to land. The effect of it is, we submit, that it would be wrong to equate a road authority with the occupier of private land. That is the effect of section 146(1)(d). Secondly, that the effect of section 146(1)(a) is that the road authority has the care, control and management of the road and has those obligations which go with such a recitation of that phrase. Against that statutory background, may I take the Court to the judgment of the New South Wales Court of Appeal in the appeal book.

KIRBY J: Would it be fair to say that the statute was for the most part written at a time when normally the local authorities got their employees to perform the activities of road maintenance and that it is only in recent times that they have used private contractors?

MR GARLING: Your Honour is certainly correct in the historical sense. The 1919 Act from which this 1993 Act derived was certainly written at a time when employees or day labour were commonly the way in which road works were done. I am not sure I could accept that by 1993 when this Act was introduced that was universally the case. I think by 1993 there was established a reasonable pattern of both self‑work either by local councils or the Roads and Traffic Authority and also work by use of contractors who were specialists in the area.

KIRBY J: I think that is a fair answer, but the fact would be that much of the old statutory scheme would be picked up and carried into a new Act perhaps without giving the fine‑combing detailed attention that was required by a change in the way councils operate.

MR GARLING: Yes. Your Honour, the scheme in 1993, at which time this Act was brought in, involved the introduction of a new Local Government Act in New South Wales. It separated out the roads function from the Local Government Act and placed it relevantly into the Roads Act and incorporated some other legislation which dealt with the RTA and the like. So it is correct that historically it was derived from the earlier 1919 local government legislation. Your Honours, the judgment commences effectively at page 387 of the appeal book.

KIRBY J: Can I just ask you, Mr Garling, during the special leave hearing you will remember Justice Callinan asked you about the post‑Brodie legislation and you accepted that that did not affect the liability of the parties in this case. Could you just give us an explanation of why that is so.

MR GARLING: Yes, your Honour. The post‑Brodie legislation is, relevantly, the Civil Liability Act 2002 (NSW), Act No 22. The provision which that Act relevantly dealt with was section 45 and that deals with nonfeasance and it provides in short that:

A roads authority is not liable . . . for harm arising from a failure of the authority to carry out road work, or to consider carrying out road work, unless . . . the authority had actual knowledge of the particular risk the materialisation of which resulted in the harm.

Now, that particular provision which has been brought in cannot apply here because, whatever view one takes of the construct between the Council and the contractor, there was work being carried out.

GLEESON CJ: The circumstances of this case would have fallen squarely within the old misfeasance concept.

MR GARLING: Correct. Leave aside the question of contractor for a moment, your Honour is absolutely correct. This was, on any view, what could best be described as a casual act of negligence of the contractor.

GLEESON CJ: Well, that may be something we have to come back to.

MR GARLING: In fact, probably very casual act of negligence is a better description. I am sorry, your Honour.

GLEESON CJ: That might be something we have to come back to.

MR GARLING: Yes. May I take the Court to the judgment below commencing at page 387. There were three broad issues before the Court of Appeal. One related to damages – that question does not arise here – and within that broad issue there was some two or three points on damages. The second was an issue of fact which was whether the hole into which the plaintiff/respondent fell was in fact present when the carpet was laid or not. That was disposed of by the Court of Appeal contrary to my client and it held that the trial judge was correct to conclude that the hole into which the plaintiff/respondent fell existed at the time that the contractor rolled the carpet out and covered it. That is not an issue in this Court so far as we are concerned. The third issue was whether the Council was liable as a consequence of a non‑delegable duty.

The decision of the court was a unanimous one and on the non‑delegable duty question was delivered by Justice Hodgson with whom the President and Justice McColl agreed. His Honour commences to deal with that at 397 of the appeal book.

KIRBY J: Essentially, the Court of Appeal of New South Wales followed a line of its own authority.

MR GARLING: Correct, commencing with the decision of Scroop v The Road and Traffic Authority.

GLEESON CJ: And a line of very old English authority.

MR GARLING: Yes, because Scroop itself called up the line of English authority and made reference to the decisions of this Court in Kondis, Burnie Port Authority, as supporting the conclusion to which it came.

GLEESON CJ: The first edition of Professor Fleming’s work on the law of torts which was published in 1957 ‑ ‑ ‑

KIRBY J: Very good year for law students.

GLEESON CJ: ‑ ‑ ‑ at page 383 under the heading of “VICARIOUS LIABILITY” in the case of independent contractors says:

A personal duty devolves on one who employs a contractor to carry out work in the highway which, by its very nature, is likely to endanger passers‑by. There appears to be a tendency to postulate that any work on or near the highway is fraught with exceptional risk of injury so as to involve the principal in liability for negligent harm caused to persons making a lawful use of the public thoroughfare.

Now, that is way before Kondis.

MR GARLING: I accept that, your Honour, and I accept that the English authorities to which reference was made in Scroop called up that principle and I should say our recent researches that we can find suggest that the position continues in the United Kingdom. The most recent case we can point to is a decision of the Court of Appeal which is entitled Rowe v Herman [1997] 1 WLR 1390 and whilst that was not a case involving a road authority – it was rather involving the owner of private land and the building of a garage and the like – the decision and obiter in it is consistent with the continuation of that principle in English law and we do not understand that the current position is any different.

GLEESON CJ: If there is anything that is surprising it is that Kondis does not refer to that as an example of non-delegable duties of care. It seems, as a matter of history, to be one of the first examples of non-delegable duties of care.

MR GARLING: Yes, but we would submit with the divergence of the common law between the United Kingdom and here and in particular with the development of the law of negligence vis-à-vis statutory authorities followed by the decision in Brodie that the common law here does not and ought not reflect that line of authority of which that is the most recent example and the earlier cases are those encapsulated by what Professor Fleming said in the text that your Honour the Chief Justice drew to my attention.

KIRBY J: Back in 1957, I remember it well, we were locked into the English authority by the link of this country and this Court to the Privy Council, but I have a dim recollection that in Trigwell there was some discussion about the differences of highway law in Australia and England because of the different nature of highways in this vast country and the United Kingdom, England, where there are pleasant little byways at the back of well‑built areas and often the circumstances are rather different to this country. I would be grateful if you could have a look at Trigwell because I think in discussing the issue of roving cattle and so on, there was some discussion about the difference.

MR GARLING: Yes, my recollection, your Honour, uninformed by a recent reading of that case, is that the Court did not hold there was strict liability for escaping cattle on a road ‑ ‑ ‑

KIRBY J: No, on the contrary.

MR GARLING: - - - contrary to the English position which had historically existed to that time. But I will certainly have a look at that, your Honour. Your Honours, at 397 of the appeal book at about ‑ ‑ ‑

KIRBY J: I was just going to ask you, apart from the English authority, have any of the other Australian States followed the Scroop – there was mention of a South Australian case, but has it been followed elsewhere?

MR GARLING: Not so far as our researches have demonstrated, your Honour. We recently redid our searches and that is the best we can presently point to.

KIRBY J: Maybe they, in the other Australian States, think that if you fall down holes you just pick yourself and dust yourself off.

MR GARLING: Your Honours, at page 397 in paragraph 22 the discussion of Scroop commences. The point is made, as is clear from Scroop, that there were two bases of liability for the Road and Traffic Authority in that case, one of which was its own direct involvement in particular traffic control operations and the other was as being liable for the conduct of the contractor, in that case I think Brambles. At paragraph 23 Justice Hodgson notes the support of Scroop in the various English cases and notes at about line 52 that:

Those cases suggest that, where 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 -

There is then a reference to a decision of Penny, one of the earlier English decisions slightly before the turn of the century. His Honour, in paragraph 24, notes:

That this principle applies in Australia has support from Scroop and Fletcher –

which was another decision of the New South Wales Court of Appeal involving the Hume Highway near Yass –

and also from Roads & Traffic of NSW v. Palmer -

which was a single car accident on a country road near Bathurst in New South Wales and then -

Since this appeal was argued, it has been applied again in Ainger v. Coffs Harbour City Council -

That was a case involving a pedestrian mall in the centre of the city of Coffs Harbour and some defective paver laying work that had been carried out by the contractor and it also, as my recollection goes, involved a question of whether the council, when taking back possession upon practical completion of the contract, did, without negligence, an inspection which would have thrown up the poor workmanship which gave rise to the hazard.

GLEESON CJ: But ultimately it is all a question, is it not, of the nature of the Council’s duty to pedestrians?

MR GARLING: Yes.

GLEESON CJ: And that in turn takes you back to the legislation that you referred us to earlier. Is the Council, being the authority that has the capacity to dig or allow or cause other people to dig up roads on which pedestrians have a right to pass and repass, under an obligation to pedestrians to ensure that the digging work is done with reasonable care, or is their obligation, when they engage an independent contractor, merely to exercise reasonable care in selecting the independent contractor?

MR GARLING: To find a competent, experienced, et cetera, contractor and arguably, your Honour, to provide sufficient specifications.

HAYNE J: At its root the problem emerges as a real problem only in the event that the contractor is insolvent. The pedestrian has a cause of action against the contractor for negligence by hypothesis, is that not so?

MR GARLING: Yes.

KIRBY J: Or, as here, where it was not insolvent but there was a separate settlement.

HAYNE J: Well, just so. The plaintiff has a cause of action against the contractor for negligence. The imposition of liability on the Council in a case of misfeasance as distinct from nonfeasance is of relevant importance only in the event of insolvency, is it not?

MR GARLING: Correct.

HAYNE J: Thus the law of negligence in this respect is moulded apparently as a guard against the insolvency of the negligent party, a moulding which one can understand in cases, for example, of teachers or persons not in a commercial activity but employed, but in the case of contractors employed by councils, presumably on terms that they carry adequate public liability insurance, the law is moulded in a particular way for what purpose?

MR GARLING: We would, with respect, say that the risk of non‑recovery or insolvency, however one puts it, perhaps the risk of less than full recovery, ought not be a principle which guides the formulation of a duty of care. So we would in due course submit ‑ ‑ ‑

HAYNE J: Now, by hypothesis there is no primary claim of negligence against the Council. It cannot be said that the Council has failed carefully to supervise. If there were such a case, let it be made and let damage be recovered, but the case for consideration is one where the Council is itself not careless.

MR GARLING: That is the way we put the case. My learned friend seeks to argue, by seeking leave to file a notice of contention ‑ ‑ ‑

HAYNE J: I understand in this case there is sought to be mounted a case of direct negligence. Yes, I understand that.

MR GARLING: And I wish to come to that in reply because that seems to me to be the most convenient time to do so, if I might. Leave that to one side on the present findings of the Court of Appeal, we would accept what has fallen from your Honour Justice Hayne that there can be no question that there was available a valuable cause of action against the contractor and ‑ ‑ ‑

HAYNE J: But it is the explanation for why the authorities in this area have emerged against a particular litigious practice which is, I think, at least common in New South Wales but, I think, either less common, perhaps even unknown, in other States where you sue the contractor.

MR GARLING: Your Honour is certainly correct to say it is common in New South Wales. It is almost invariable as a practice in New South Wales.

KIRBY J: Well, after that case of Boylan you would be very unwise not to sue the contractor.

MR GARLING: Yes, and indeed you would be very unwise to settle with the contractor for a compromise which did not adequately reflect the potential of that contractor’s negligence.

KIRBY J: There was no suggestion in Boylan that refrigeration repairers fall in the category of the non-delegable duty of care, so at some stage you will have to help us to try and work out conceptually what cases do fall and what do not and according to what principle. It just seems to be a series of instances. I do not at the moment see a genus, but no doubt there is one. Anyway, you take that at the right time.

MR GARLING: I will come to that because I need to take the Court back to Kondis which really is the starting point in this Court for the consideration of the questions that this appeal raises. May I just complete, so that your Honours have it, the remarks of Justice Hodgson in paragraph 24 in the appeal, page 398 of the appeal book. His Honour goes to the New South Wales authorities and then acknowledges that the position of a road authority was not specifically dealt with in Kondis but then sets out the general principle, and I will take your Honours to Kondis shortly.

CALLINAN J: Mr Garling, before you do that, were there any documents tendered which show what the contract was between Roan and the Council?

MR GARLING: Yes, your Honour. May I take the Court to those immediately. Perhaps commencement of the sequence of events is a quotation by Roan contractors. That is to be found at pages 244 and 245. Your Honours will see it is a pretty broad general quote for the work. That was accepted and Roan at the time of being invited to tender was provided with some specifications which are to be found at pages 249 and 250 of the appeal book. Your Honours will see that there are two pages of specifications:

Parramatta Road from Norton Street to Balmain Road . . . This specification shall be read in conjunction with LEICHHARDT COUNCIL’S SPECIFICATION FOR ROADWORKS.

That was referred to as the general conditions or the broad overarching contractual terms. They did not find their way into evidence.

CALLINAN J: Usually public authorities insist that a contractor insure not only workmen but also have a public liability policy. Is there anything of that kind here?

MR GARLING: There is nothing proved in this case which directly establishes that. I agree with your Honour that that is the general practice and I can only say that at trial it does not appear that the general specifications for road works were tendered but rather only these two pages referring to this particular area were tendered.

CALLINAN J: Nothing about the contractor’s obligations except its obligation to do the work for a certain price, is that right?

MR GARLING: Correct. Then there are a couple of matters here, if I may just draw them to the Court’s attention. At line 30 on page 249:

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.

That was the source of the contractual obligation. That meant that the artificial grass or carpet was rolled out over the footpath works, including the Telstra pit, so as to enable “clean access”, it says - that is to say, pedestrians who were using the area to get in and out of shops without tramping the mud or dirt or dust through.

KIRBY J: But who would read that to mean you put a carpet over a hole?

MR GARLING: We do not suggest you do, your Honour.

KIRBY J: Of course not. I mean, the key to it is found in “provide clean access”.

MR GARLING: Clean access. That is the purpose of it, obvious reasons that one cannot have – well, presumably to avoid concerns by shopkeepers about their shops being inappropriately the subject of trampled dirt but that is the source of that obligation. Then on the next page, your Honours ‑ ‑ ‑

KIRBY J: I suppose that maybe a suggestion is that because carpets can hide a multitude of sins and unevennesses and holes and so on, that by specifying that you, as the authority with the power, had an obligation to make sure that what happened, bizarre though it was in this case, should not have occurred.

MR GARLING: Yes, that might be a useful argument at trial, your Honours, but at this stage one would expect that if that was to be the argument made that that is the very point that would be drawn to the relevant council officer’s attention in cross‑examination and have the opportunity to explain it. Your Honours, at page 250, the only matter I want to draw your Honours’ attention to is between lines 5 and 10:

Works along Parramatta Rd are to be undertaken as Night Works between the hours of 7.30pm to 5.30am Sunday to Thursday.

These were overnight works and the works did not continue between 5.30 am Thursday morning through to Sunday evening. This accident happened on a Saturday evening.

It was never a question that works were actually being done with workmen at the time of this accident, but rather it was obvious, as the plaintiff respondent accepted, that as one walked down the footpath it was clear works generally were being undertaken and the footpath was being renewed. Now, I think that relevantly answers your Honour Justice Callinan’s question about the extent of documentation that might be regarded as forming part of the contract.

There is documentation surrounding other issues such as whether or not the Road and Traffic Authority would permit a lane of Parramatta Road to be closed. There is other documentation surrounding the rendering of invoices and the like and other parts of this contract so that some parts of the area were to be painted with anti-graffiti paint and the like, but there is nothing more that touches upon this particular contract or the work being undertaken.

Your Honours, at paragraph 25 on page 399 of the appeal book Justice Hodgson notes that:

It can be said that a road authority that undertakes work on a road involving risk to road users is so placed in relation to road users as to assume a particular responsibility for their safety.

That picks up one of the matters identified in Kondis and may I return to that. Then his Honour in paragraph 26 says:

I do not think Brodie stands against this approach.

The question which arose directly in this judgment was whether the outcome of this Court’s decision in Brodie would be inconsistent with the non‑delegable duty which had been found originally in Scroop and which the Court of Appeal continued by its various authorities to accept and his Honour says:

The general duty of road authorities is to take reasonable care; but in the particular circumstance where the road authority undertakes work involving risks to road users, a circumstance not considered in Brodie –

We would respectfully submit that his Honour erred in that remark ‑

that general duty is overlaid by the more extensive duty that arises because of the risk created by the undertaking of those works. In my opinion, until the High Court says otherwise, this Court should follow Scroop, Fletcher, Palmer, and Ainger -

There is then a reference to Wagner that need not trouble this Court. That was a case in which a local council succeeded on an appeal where the plaintiff could not identify who had laid a particular paver in the Waverley Council area. Then his Honour concludes at paragraph 28:

In the present case, the Council did undertake work on the footpath involving risk to users of the footpath, it engaged Roan to perform the work, and it retained overall supervision and control of the work. In my opinion, the principle I have referred to was engaged, so the Council is liable for the negligence of Roan.

Your Honours, against what I know will in due course be the subject of the submission about leave to file a notice of contention, may I just make the submission that that paragraph makes it plain that in the Court of Appeal the only basis of liability for my client was by reason of the principle of non‑delegability.

KIRBY J: It was the only basis of liability that Justice Hodgson was dealing with.

MR GARLING: Yes, he dealt with no other.

KIRBY J: If he had found the route to orders by way of non‑delegable duty, then he did not have to deal with direct personal liability of the Council, did he?

MR GARLING: That is true except, of course, his Honour was well seized of the fact that the legal principle of non‑delegability was being challenged and the court’s line of authority was sought to be challenged. One would ordinarily expect in that circumstance if there was a second limb of liability that it regarded as having before it the court would deal with it.

KIRBY J: I think we had better postpone this until you have taken us to the material because when I looked at the statement of claim it is in such generality that it would include a personal liability. So let us just wait and see whether you lay out the facts that show that it would be procedurally unfair to you to have to now face in the final court an issue that was not really contested at trial and not really contested in the Court of Appeal.

MR GARLING: If it is convenient to your Honours, I will do that in reply to my learned friend when he has taken the Court to why it is he ought be given leave to proceed, his notice of contention. Your Honours, that is the judgment the subject of the appeal. The only other matter which may be of some assistance to the Court merely by way of factual context and background is if your Honours were to notice a series of photographs of the area just to enable the Court to have some visual indication of the area. If your Honours would go to page 126 of the appeal book ‑ ‑ ‑

KIRBY J: The one on 118 is particularly vivid, I thought, because it shows the whole.

MR GARLING: I am coming back to that, your Honour, but I wanted to give your Honours a general view of the footpath, generally, which one sees at 126. Your Honours will see in the top photograph and also the lower photograph there that on the left as one looks at the photograph is the trafficable lanes of Parramatta Road. Your Honours see there is what was described in the evidence as a New Jersey concrete barrier between the trafficable surface of the road and the footpath. Then your Honours can see, this photograph being taken a long time after the accident, that the footpath has been renewed and your Honours will see against the junction of the shopfront and the footpath circled in black on both those photographs where the pit is, its lid having been repaired or replaced at the time of this photograph. On the right‑hand side of page 127 is a more detailed photograph of that area.

If your Honours go to page 118 is one set of photographs of the broken pit lid. The evidence was given by the plaintiff’s wife, then his girlfriend, that she took these photos within a few days, perhaps a week, after the accident happened to the plaintiff and that the date on her camera was some form of computer malfunction or perhaps the date had never been correctly set, that the date was irrelevant to when she took the photographs. Your Honours will see the state of the footpath lid.

Just to pick up something that your Honour Justice Kirby raised, it does graphically depict that but clearly there has been some difference from when the plaintiff fell in there because the plaintiff said that there was quite a lot of broken concrete and other material when he tried to take his foot out of the hole. So to some extent there has been a small cleaning up of what was otherwise there. There are some other photos not nearly as good at pages 124 and 125 of those views. But that, your Honours, is the area which was covered by the carpet, and the plaintiff was walking not in or out of any shop but rather lineally along the footpath.

Your Honours, perhaps it would be appropriate against that background to first remind the Court of the line of authority in this Court, commencing with Kondis (1984) 154 CLR 672, if I may take the Court to that. Your Honours will no doubt be well familiar with the factual background and I will not delay with that, save to remind the Court that Kondis was a case of employer/employee negligence. The question was whether the employer was liable for the negligent conduct of the independent contractor who was the crane operator.

The relevant parts of the judgment appear in the judgment of Justice Mason commencing at page 685 where his Honour has reviewed some of the earlier decisions involving invitees and occupiers, and then at the bottom of 685 his Honour says:

Outside the realm of master and servant and the cases discussed in the preceding paragraph –

that were essentially either landlord and tenant or occupier/invitee cases –

the concept of a personal duty has been applied to the common law duty of care owed by a hospital to its patient . . . and by a school authority to its pupils.

Then, omitting some of the references, his Honour at the top of page 686 says:

The liability of a hospital arises out of its undertaking an obligation to treat its patient, an obligation which carries with it a duty to use reasonable care in treatment, so that the hospital is liable, if a person engaged to perform the obligation on its behalf acts without due care: Gold.

Now, your Honours, Gold v Essex County Council and the other two cases referred to earlier in that paragraph of Cassidy and Roe raised questions about whether, where one had expert employees such a radiologists, medical specialists and the like, and the employer – or in one case I think there was a visiting medical officer – had no practical control over how they did their duties and what they did – in other words, the employer, the hospital authority, did not tell a surgeon what to do or did not tell the expert what to do – whether they were, once having engaged a competent employee or a competent specialist, liable for what occurred.

CALLINAN J: Mr Garling, I suppose once the doctrine of common employment as a defence was abolished then in master and servant cases you get very close to non‑delegable duty by that route.

MR GARLING: Yes, correct. Master and servant cases are a very different genus of case, in our respectful submission, because of that well‑known overarching obligation of the master.

CALLINAN J: And really entrenched or reinforced by the abolition of the doctrine of common employment.

MR GARLING: Absolutely so, your Honour. His Honour then goes on to express the conclusion at the end of the first paragraph at page 686:

Accordingly, the duty is one the performance of which cannot be delegated, not even to a properly qualified doctor or surgeon under a contract for services: Cassidy.

Cassidy was that earlier decision where the doctors were retained under a contract of services rather than as a straight employee. May I pause to say, your Honours, that more recent decisions of this Court in cases such as Hollis v Vabu Pty Ltd, the Crisis Couriers case, would tend to suggest that the same result would be reached by a different analysis that was reached in Cassidy by an imposition of a non‑delegable duty of care. The decision of this Court in Hollis suggests that one does not have to torture oneself to find a non‑delegable duty, that if the person, even an independent contractor, is obviously, as was the case there, a part of the organisation and the organisation gave extensive directions and control and the like, as happened in that case, the organisation will be liable for their conduct.

GLEESON CJ: It looks as though the reason Justice Mason did not deal with the line of authority with which we are now concerned is to be found in the concluding sentence of the first complete paragraph on page 687. I think Dalton v Angus was one in that line of cases.

MR GARLING: Yes, that is so, your Honour. We would say, to pick that up, that although notionally one never closes the categories of negligence or non‑delegable duty or the like, there is an obvious reluctance in this decision and the following decisions to expand the categories in which one might find non‑delegable duties.

KIRBY J: I thought we said something like that in that Northern Sandblasting Case. I have a dim recollection that I indicated for my own part that I had reservations about expanding the ‑ ‑ ‑

MR GARLING: Yes, your Honour said that, my recollection is, at about pages 406 and following, but I will find the specific reference.

KIRBY J: I suppose my hesitation is because I cannot really see what is the principle on which one is assigning a non‑delegable duty in some categories of relationship and not in others. We have to be a little careful here that we do not get our doctrine all out of order. We have to fit this case with Hollis and Boylan and with the categories where the Court has recognised a non‑delegable duty such as employment and perhaps schools.

MR GARLING: I was just coming to schools because we could not ‑ ‑ ‑

KIRBY J: Even schools came under a little bit of sniping, if I can put it that way, in a case where a very notable counsel had argued the case and it was sort of questioned.

GLEESON CJ: We also have to fit this case with the law of nuisance, do we not?

MR GARLING: Yes, your Honour, of course.

GLEESON CJ: It is the nature of the duty that the roads authority owes to pedestrians or to users of the highway who have a right to pass and repass that has been regarded in the past as the key to the non‑delegability.

MR GARLING: Yes, but as the New South Wales Court of Appeal would express it, whilst that is the underlying part, the Court would say that it is the comparison of the nature of the power which a road authority has or control which it permits with the vulnerability of the road user which fits it into the category of non‑delegability of the kind that Justice Mason talked about in Kondis and the Court dealt with in Burnie Port.

Now, we would challenge that basis, your Honours, by saying that it would be our submission that, properly considered, the nature of a road authority’s powers are not of the kind that a school authority has, such great control over every activity of a school pupil that a school authority would have. We would add to that, particularly with pedestrians, but we accept we have to put the principle on the broader basis of all road users, but we would add to that that there is no question of special dependence or vulnerability or the like as those cases highlight.

GLEESON CJ: What you have in their case is a right to pass and repass.

MR GARLING: That is so and a risk of being liable in nuisance if that right is unreasonably interfered with. But it is not a statutory right, your Honour, or a common law right, it does not matter, which is a right to pass or repass without risk, or it is not a statutory right or common law right which of itself in Brodie was seen to be the basis to impose a duty on a statutory authority to undertake work where there was a case of nonfeasance which may interrupt that right to pass or repass.

GLEESON CJ: If the right were unlawfully interfered with in such a way as to constitute nuisance, it would be no answer to an action for nuisance to say that the interference was done by the work of an independent contractor, would it?

MR GARLING: I pause so that I can hopefully get the answer correct. We would submit that, because the right to damages in nuisance incorporates as an element the reasonableness of the conduct, it is not an absolute liability in negligence. We would submit that there is room for the proposition that a road authority would be not liable in nuisance where it had acted reasonably, but the contractor had not.

GLEESON CJ: It may be that before we take our final leave of this case we will need to have a closer look at the law of nuisance.

MR GARLING: Yes, if your Honour pleases. I wanted to draw the Court’s attention to what Justice Mason said in Kondis about the school authority, that being on all hands a very good example of a non‑delegable duty. His Honour says:

Likewise with the school authority. It is under a duty to ensure that a reasonable care is taken of pupils attending the school. It is the immaturity and inexperience of the children and their propensity for mischief that lie at the basis of the special responsibility which the law imposes on a school authority to take care for their safety: Introvigne. The child’s need for care and supervision is so essential that it is a necessary inference of fact from the acceptance of the child by the school authority, “that the school authority undertakes not only to employ proper staff but to give the child reasonable care”, to use the words of Kitto J. in Ramsay v. Larsen.

KIRBY J: Can we say that there is an analogy between the employment situation where the law is determined to ensure that there is a pocket to which the employee can look and, in the case of school children, that there is this feature of the very nature of the relationship, that there is analogy here that the statute indicates Parliament intended you to be the authority that would have responsibility for road works and all sorts of people can do road works, many of them of different and lower capacities and carelessness and that in the nature of the relationship and the nature of those who might do it, perform the actual work, that therefore the liability is non‑delegable by analogy to those other categories?

MR GARLING: Your Honour, we would say that is not the correct approach, and may we submit why. The school student - and more so for the younger students, but let us deal broadly with all students – is entrusted to the school authority and the school authority has obligations that might be described outside the common law as those of being in loco parentis. That carries with it, as this Court has said, high obligations but that, as Justice Mason says, is because of the particular vulnerability and also because the school authority, whilst the pupil is there, has the absolute care and control of the school student. The child comes in the gates and is handed over, in effect, by the parents to the control of the school for that time.

It is the very fact, your Honour, that various bodies - local government authorities who are the road authority, but also other utility authorities – are given power by the laws of a State to dig up roads, legitimately, for their purposes. It is that very fact which distinguishes a road authority from a school authority. One could not imagine a school authority having a circumstance where beyond its control or knowledge the university could come in and say, “Now, we are going to take over these students and give them a lecture on particular aspects of this part or that part of their education, or take over their care for the day, or take over their care for part of the day”. The school, as does the employer, has the absolute control and ultimate responsibility.

The road authority is not the occupier of land, section 146(1)(d). At best, it has the care, control and management of the land and the power to undertake work. In that it has the power to undertake work it has a power similar to, not identical, but similar to the power of utilities to undertake work to enable them for their purposes to undertake that work. Now, utilities do not need to seek the permission of the road authority to do the work. They are entitled to issue a notice and do the work so that one has a very different construct of control with the formulation of a road authority. It cannot ever be said to be exclusive.

HAYNE J: What distinction can you draw between the position of the road authority and that of the employer as described by Justice Mason in Kondis at 687 to 688?

MR GARLING: The answer to that is that at the very bottom of 687 his Honour says:

The employer has the exclusive responsibility for the safety of ‑ ‑ ‑

HAYNE J: Now, is that not the case with the road authority?

MR GARLING: No. It does not have the exclusive right to undertake roadwork in the sense that it has the power to undertake the roadwork, section 71, but so do others. To pick that up, your Honour, if I might, if one considers the concept of imposing a non-delegable duty on a road authority, namely it has the obligation to ensure that reasonable care is taken then, whether it is a contractor undertaking that work by reason of the permission of the road authority or it is another utility statutory authority undertaking that work, one has to come to the result that the road authority is liable for that other statutory authority’s work.

One would only get that if one could say, consistently with what Justice Mason says about the employer, it has exclusive responsibility but statute tells otherwise. It is one of a number of parties with the power to undertake road works. It has, I accept, the role of care, control and management but that is not, we would submit, the same as an exclusive responsibility.

HAYNE J: Does the statutory reimposition of the nonfeasance rule have anything to say about what is said at 687 to 688, particularly 688:

The consequence is that in these relevant respects the employee’s safety is in the hands of the employer.

The road user’s safety is in the hands of the road authority, is it not, if looked at in the broadest way, but somehow you have to factor in the statutory reimposition of the nonfeasance rule.

MR GARLING: Yes, which means that the effect of that is that whilst the road authority may be broadly responsible, that responsibility or that care, control and management cannot be equated with an obligation of a kind that would give rise to a cause of action because nonfeasance is excluded, whereas an employer could not ever say “I sent the employee to this place of work”, as one commonly sees, “not a place which I own but a place of which the employee went to work, and I did nothing to check whether it was safe or not, therefore, I have not created a risk or exacerbated the danger or the like and therefore I am not liable”. In that circumstance, the obligation on the employer is to inspect first.

We would add, if we might, your Honour, whilst on the passage that your Honour has drawn our attention to, that about six lines down on page 688 Justice Mason says:

In the case of the employer there is no unfairness in imposing on him a non-delegable duty; it is reasonable that he should bear liability for the negligence of his independent contractors in devising a safe system of work. If he requires his employee to work according to an unsafe system he should bear the consequences.

So that his Honour looking, perhaps, at a broader policy consideration did not detect any broadening in fact of the obligation of the employer by describing the employer’s obligation in terms of a non-delegable duty. Indeed, we would say the same applies in a school authority case where imposing a non-delegable duty, as it was called, does not in fact really change the nature and content of the duty of the school authority it would otherwise owe.

KIRBY J: There must be academic articles where learned authors have examined the governing or uniting concept in these cases. Have you found any recent ones?

MR GARLING: Not recent ones, your Honour. There certainly was a series by Professor Swanton and Professor McDonald which are footnoted in a number of the cases including Brodie, I think, about that but I have not found anything recent on that question.

KIRBY J: I think I will have to ask you, if you would not mind, to have a look for those because when you are struggling with trying to see the concept here it is just not a couple of categories. You have to have some theory behind why you have extended it in these cases and whether that theory applies to the present instance. Often academics have more time to look at that sort of question than judges do.

MR GARLING: Your Honour, may I continue with Kondis because to the extent that that principle emerges it comes shortly after those parts of Justice Mason’s judgment I have been taking the Court to. In the third paragraph on page 686, his Honour refers to a series of invitor/invitee cases and his Honour says at the second part of that paragraph:

If the invitor’s duty is non‑delegable it is because the invitor’s invitation to the invitee to enter his premises imposes upon the invitor a duty to see that reasonable care and skill is exercised in making the premises safe.

Then his Honour goes on perhaps to deal with some questions of principle.

The principal objection to the concept of personal duty is that it departs from the basic principles of liability and negligence by substituting for the duty to take reasonable care a more stringent duty, a duty to ensure that reasonable care is taken.

Then his Honour says at the top of 687:

However, when we look to the classes of case in which the existence of a non-delegable duty has been recognized, it appears that there is some element in the relationship between the parties that makes it appropriate to impose on the defendant a duty to ensure that reasonable care and skill is taken for the safety of the persons to whom the duty is owed.
Now, it is that concept of the relationship between the parties his Honour goes on then to deal with in the next paragraph, and may I just pause to draw the Court’s attention to that:

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 special need of care. The school authority undertakes like special responsibilities in relation to 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.

CALLINAN J: Mr Garling, what was the case in which we discussed Northern Sandblasting, at some length I think.

MR GARLING: Jones v Bartlett (2000) 205 CLR 166.

CALLINAN J: My recollection is that there was some cold water thrown on Northern Sandblasting there.

GLEESON CJ: A fairly evasive target actually.

MR GARLING: I was about to say, I must confess to some difficulty in identifying a central principle in the judgments in ‑ ‑ ‑

KIRBY J: It is not as bad as Perre v Apand.

MR GARLING: So I have tended to avoid looking in great detail at Northern Sandblasting but ‑ ‑ ‑

CALLINAN J: But Jones v Bartlett might be relevant to that.

MR GARLING: Yes, it certainly does, and Jones v Bartlett does not, as we see it, identify a non‑delegable duty although, when one looks at the submissions in that case it may be a case in which it did not directly arise. The question in Jones v Bartlett, the specific question being the state of the premises at the commencement of the tenancy and whether the particular glass door was or was not safe in the confine of that ‑ ‑ ‑

CALLINAN J: I think you say in your written submissions that Justice Fitzgerald was the only person who found a non‑delegable duty in the Court of Appeal in Queensland.

MR GARLING: Yes.

CALLINAN J: I thought Justice McPherson may have said something to a similar effect. I am not saying it is right. I just ‑ ‑ ‑

MR GARLING: No. Well, your Honour, may I double check that?

CALLINAN J: Think about that, yes.

MR GARLING: It might be convenient if I draw your Honour’s attention to this. The basis for Justice Fitzgerald’s finding of a non‑delegable duty in the Court of Appeal in that case was laid out by Justice Toohey in Northern Sandblasting v Harris (1997) 188 CLR 313 and at page 353 in the judgment of Justice Toohey there are a series of factors listed which, as Justice Toohey describes it underneath those factors:

point to what the majority in Burnie referred to as “the central element of control” in the appellant and a special dependence or vulnerability on the part of the respondent, such as to give rise to an assumption of responsibility -

If one looks at those matters or factors, they seem to concern principally three things: one is the nature of the relationship between the appellant and the landlord; secondly, the nature of the danger, being the electricity and the like; and then thirdly, the failure of the respondent landlord to undertake any checks.

Now, we would submit, your Honours, that when one looks at what Justice Mason was dealing with in Kondis, he was concentrating on, in identifying those cases where such a duty may exist, the relationship in the two elements, the particular control on the one hand and the special vulnerability or dependence on the other, whereas in Northern Sandblasting Justice Fitzgerald seems to have gone well beyond that in those factors.

Might we, in looking then at this case, the road user case, invite the Court back to what Justice Mason says at 687 in summary. This, in answer to some questions that have fallen from your Honour Justice Kirby, is really what seems to be the central principle identified, namely:

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.

Then his Honour goes on to say, as the Chief Justice drew my attention to earlier:

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.

GLEESON CJ: That is the area with which we are concerned, is it not?

MR GARLING: Yes, your Honour, it is but the difficulty is if that be right, and I am not suggesting it is not, that when one comes to the line of authority in New South Wales commencing with Scroop, they call up that first part of the quote which I just read, namely “the care, supervision or control”, and say that a road authority has such care, supervision and control and then say that the road user is especially vulnerable or dependent. So that their Honours in the New South Wales Court of Appeal line of authority tend to draw on the first part of that rather than to say that that is not in fact what his Honour Justice Mason was dealing with and was putting to one side questions such as the road authority.

KIRBY J: In fairness to their Honours, it seems likely that the way in which the principle was adopted into New South Wales law was via the English cases. The source in England for this principle seems to have been in the law of nuisance rather than the emerging principle, if any, that links Kondis, Introvigne and other cases in Australia. It just had a different historical route but ended up in the same box.

MR GARLING: Yes. On that question it is perhaps appropriate if I at this point remind the Court of one area where the law of negligence in this country has diverged from England. That can be found in paragraph 129 of the joint judgment in Brodie (2001) 206 CLR 512. At page 570, at least in the joint judgment of Justices Gaudron, McHugh and Gummow, in paragraph 129 their Honours say:

The time has now come, by parity with the reasoning in Burnie Port Authority v General Jones Pty Ltd, to treat public nuisance, in its application to the highway cases, “as absorbed by the principles of ordinary negligence”. In any event, as has been indicated above, the intrusion of nuisance into this field in the mid‑nineteenth century lacked any firm doctrinal basis.

I do not recall in Brodie that other members of the Court dealt specifically with those remarks although some questions of negligence were referred to in passing another - dealt with in other judgments.

GLEESON CJ: In the Dalton v Angus Case that was replied upon in Hardaker in [1896] 1 QB 335 at 341 for this principle, right or wrong, that was later taken up in the New South Wales cases, Lord Justice Lindley referred at the bottom of 341, the top of 342, to what he described as the law “as it was laid down by Lord Blackburn in Dalton v. Angus”. The proposition is that:

a person causing something to do 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.

So the idea seems to be that you have to find out the nature of the duty that the road authority owed to users of the highway and, rightly or wrongly, the conclusion that has been reached for over a hundred years is that it is one of these non-delegable duties. It is not a question of trying to expand the liability. Your argument is attempting to contract it. You may be right and maybe we should contract it.

MR GARLING: Your Honour, we would submit that if one identifies as the commencement point a search for the nature or content of the duty of a road authority in this Court the starting point is Brodie and when one looks at that, in our respectful submission, the extent that there is a central, almost common, identification of the nature of the duty is what we would call, or describe as, the usual, general duty in negligence and Brodie does touch upon cases where construction work is being done and repair work is being done and the like so that we would submit that when this Court comes to consider this question it is an expansion of the nature and content of the duty of a road authority rather than a ‑ ‑ ‑

HAYNE J: Dalton v Angus and the development that the law that finds its roots there was subject of some discussion by Justice Gummow and I in Lepore 212 CLR 511 at 596 and following, paragraphs 248 and following where we pointed – I have in mind, particularly, page 597 paragraph 249 – to the difficulties that followed from the application of Lord Blackburn’s dictum in Dalton v Angus to “cases where the duty was to act with reasonable care” and the translation of the dictum in Dalton v Angus from rights of support across into the field of negligence carried with it at least some difficulties.

MR GARLING: We would, with respect, submit that what was there said in those paragraphs that your Honour has identified is consistent with a reluctance more generally in this Court to extend non-delegable duties beyond those categories which have been clearly identified and articulated in Kondis ‑ ‑ ‑

HAYNE J: Well, part of the difficulty lies in the fact that the expression “non‑delegable duty” may mask more than it illuminates because what exactly is being said when it is said that somebody has a non‑delegable duty?

MR GARLING: Your Honour, the conventional content of a non‑delegable duty identified in this Court is a duty to ensure that reasonable care is taken. Justice Gummow in Scott v Davis, as I said earlier, identified that as, in effect, a duty of strict liability and, pausing for a moment to consider that, that must be so, because it means that once one has even a casual act of negligence, then one has not ensured that reasonable care has been taken, and we would submit that that would impose a duty of a content far greater than that which this Court considered in Brodie.

CALLINAN J: Mr Garling, can I tell you a matter that troubles me and I will try to explain. I do not think it is a matter that can be dealt with discretely and exclusively in reply. In a sense, both at common law and by statute here which enacts the common law really, a highway authority – and I use that term loosely – is always effectively in occupation of a highway. If it is always effectively in occupation of a highway, why does not that colour the nature or affect the nature of its obligations, at least to take reasonable care for persons moving on the land over which it remains by statute at all times the occupier? It was here, because access was not denied and the contractor, Roan, did not have total access to and control and occupation of the footpath.

MR GARLING: I accept that, your Honour, but the term “occupier” can, of course, describe a range of factual circumstances ranging from the ownership and occupation of a site of private land ‑ ‑ ‑

CALLINAN J: Of course, that is right, but take occupation here in the sense in which I have just put it to you.

MR GARLING: But “occupation” here, your Honour, we would submit, is a very loose and dangerous word for this reason, that one has to distinguish between the notion that occupation of a piece of private land enables you to exclude completely who may come on the land and it will enable you to choose who may come onto the land and enable you to ‑ ‑ ‑

CALLINAN J: Well, they do not have that choice. Local authorities do not have that choice.

MR GARLING: Absolutely correct, your Honour, and that is why we say to treat the road authority as an occupier in the traditional sense is to misstate the true nature of the relationship between a road authority and a road user.

CALLINAN J: Well, it may not be a complete or, indeed, even entirely accurate statement of the relationship, but a relationship of that kind – and I use it that way, that a relationship of that kind exists may affect the nature of the duty and the existence of the duty owed.

MR GARLING: The real difficulty, your Honour, we would submit, with identifying a road authority, even in the very context in which one is discussing it here, as akin to an occupier is that it is an indirect way of raising the now discredited notion that general reliance can give rise to a duty. Because the occupier, the road authority, is bound to permit an unlimited number or unidentified group of people to pass and repass, does not know who they are, does not know when they will do it, does not know whether they are physically disabled or not or what their condition may be ‑ ‑ ‑

CALLINAN J: But it knows that it will happen and that it is likely, or at least possible, that disabled and blind and all sorts of people will pass on it.

MR GARLING: Absolutely, your Honour, so what that really says is that the relationship between the road user and the authority is one where the road user relies on the road authority to ensure that the road or footpath is reasonably safe. That is an example of general reliance which is not a sufficient relationship to give rise to a general duty of care. There is no difference between the road user in that circumstance and a member of the public who relies upon the Department of Corrections to behave reasonably in detaining prisoners or relying upon the water authority to order its affairs in a way which does not mean that water will escape.

CALLINAN J: I do not know about that.

MR GARLING: There is no other way, in our respectful submission, of analysing that relationship unless one says it is no different from the statutory authorities and the general public and, therefore, it is a question of whether a member of the public, road users, can rely on the authority, leave aside specific facts and circumstances.

HAYNE J: But you also have to build into this somewhere the nonfeasance problem.

MR GARLING: Yes, your Honour, where the Parliament has said in this particular area there will be no liability.

KIRBY J: That is New South Wales of course. We have to deal with the common law for the whole of Australia.

MR GARLING: Yes, of course, your Honour.

GLEESON CJ: There is not any dispute, is there, that your client owed a duty of care to Mr Miller’s client? The contest is as to the nature of that duty.

MR GARLING: The content and the nature of it, yes, your Honour.

GLEESON CJ: If you were found to be correct in your description of the duty of care, there is a factual issue about whether there was a breach, an unresolved factual issue.

MR GARLING: We would say yes, it is unresolved but even the present factual finding, namely a casual act of negligence by rolling the carpet out over a hole in the pit which was not apparent or detectable at least by the three pedestrians that her Honour had evidence from here who walked down the street, that could not be a sufficient finding to engage what one might call the general duty, that we failed to take reasonable care in circumstances where we contracted with an apparently independent and apparently competent contractor.

GLEESON CJ: Do not assume that that expression “casual act of negligence” is one that has a clear meaning.

MR GARLING: Your Honour, I absolutely accept that. I have struggled to find some difference between leaving a pile of sand on the road and leaving a pick handle on the road and I am not quite sure that one can identify a difference of principle, but perhaps one can deal with it in this way by saying an act of negligence which is not readily apparent from a reasonable inspection in the sense that one could postulate a reasonable inspection coming along and seeing that open holes were being left in the footpath regularly by a contractor and one could say there was a clear negligent process or application to detail, but ‑ ‑ ‑

GLEESON CJ: I think the other expression that was used as well as “casual” in the context that you have just referred to was “collateral”, and that may throw more light on it.

MR GARLING: Yes. Alternatively, one that is not readily discoverable might be another way of putting it.

GLEESON CJ: No, it would be as though Roan Constructions negligently parked their vehicle.

MR GARLING: Yes.

HAYNE J: But does any question of reasonableness intrude in assessing the Council’s behaviour? I thought if there was a non‑delegable duty, the answer was no.

MR GARLING: That is so, your Honour, and that is one of the reasons why we submit that a non‑delegable duty ought not be found because it is one which does not permit a council to say once an accident has happened in circumstances of the danger being identified, “We acted reasonably by in effect handing over to an apparently competent contractor”.

KIRBY J: By the way, the reservation that I referred to earlier about extending the categories is in Lepore at 609, paragraph 295.

MR GARLING: Thank you, your Honour. I will give your Honours a more specific reference. I had intended to take the Court to Burnie Port and then to Northern Sandblasting but in light of the discussion, rather than take your Honours to those authorities and take your Honours to specific passages which are identified in our submissions, it might be convenient if I go now to Brodie.

GLEESON CJ: Could I ask you one question about Burnie before you pass from it. Is it the case that in Burnie this Court regarded it as easier to depart from Rylands v Fletcher by saying that in a typical Rylands v Fletcher situation there is a non‑delegable duty?

MR GARLING: Yes.

GLEESON CJ: So that the view was taken that the position of an injured person was not substantially worse off because the hazardous nature of what the landowner had on the land was taken care of by the concept of non‑delegable duty.

MR GARLING: Yes, your Honour.

GLEESON CJ: That, in turn, is related to the present problem, is it not, in that some text writers have explained the line of authority that you wish to have overturned in England on the basis that the English courts have equated road works with hazardous activities because of the nature of the right of the public to pass and repass?

MR GARLING: Yes is the answer to that.

GLEESON CJ: Whether it is good or bad, that is theory behind it.

MR GARLING: That is the theory, yes, your Honour, although the one thing I will say about Burnie 179 CLR 520 is that at the bottom of 550 and top of 551 there is a reference back to Kondis and the joint judgment of the Chief Justice, Sir Anthony Mason, and Justices Deane, Dawson, Toohey and Gaudron does say:

It will be convenient to refer to that common element as “the central element of control”.

So they hark back to that.

Viewed from the perspective of the person to whom the duty is owed, the relationship of proximity giving rise to the non‑delegable duty of care in such cases is marked by special dependence or vulnerability on the part of that person.

That was in the context of the hazardous material on the land which gave rise to the duty and that is, I think, exactly what your Honour the Chief Justice has put. At page 554 of that decision, when dealing with the degree of care, their Honours say:

Even where a dangerous substance or a dangerous activity of a kind which might attract the rule in Rylands v. Fletcher is involved, the standard of care remains “that which is reasonable in the circumstances, that which a reasonably prudent man would exercise in the circumstances”. In the case of such substances or activities, however, a reasonably prudent person would exercise a higher degree of care. Indeed, depending upon the magnitude of the danger, the standard of “reasonable care” may involve “a degree of diligence so stringent as to amount practically to a guarantee of safety”.

Now, in that part of the judgment one might be forgiven for seeing that the resolution of that case depended upon a question of breach rather than a question of the nature and content of the duty. Obviously, if one is dealing with breach and one is faced with the consequences of a risk which are very high, in certain circumstances one can say that in order to discharge their duty the defendant needs to do more than in other circumstances. Breach is a relative concept which moves with the context and the facts.

HAYNE J: To whom are their Honours referring at 554 when discussing the degree of care, the person the subject of the non‑delegable duty or some other person?

MR GARLING: Well, the commencement of that paragraph is “Where a duty of care arises under the ordinary law of negligence” and their Honours deal with that. It seems though to be a statement which suggests that their imposition of the non‑delegable duty of care is not an extraordinary step to take in circumstances where there is a dangerous substance or activity, but, your Honour, it is, I have to say, not clear whether their Honours intended that to reflect more generally. Your Honours, may I take the Court to Brodie?

KIRBY J: Do you ever anywhere formulate what you say is the proper conceptual link between the categories of non‑delegable duties in Australia?

MR GARLING: No.

KIRBY J: I think you are quite content, like most common lawyers, just to say, “Well, there are these categories and we know what they mean and we just apply them” ‑ ‑ ‑

MR GARLING: We are just incrementalists deep down, your Honour.

KIRBY J: ‑ ‑ ‑ but when you get here you have to have a theory for the increment.

MR GARLING: Well, your Honour, our preference ‑ ‑ ‑

HAYNE J: You are looking for decrement.

MR GARLING: ‑ ‑ ‑ if we were so bold, is to say that any search for theory and principle underlying it is absent and whilst we do not seek leave to overrule previous decisions because we do not need to, we would certainly submit that one cannot find any principle underlying any new category.

KIRBY J: Well, your danger for you in that is that if we are in the business of categories you have a long line of English authority against you in the categories and you have the law of nuisance and you have a well‑established track record in New South Wales and why, if we are in the business of categories, would we disturb this category?

MR GARLING: Well, we would say, firstly, this Court has not identified it as a category so that what this Court is doing is identifying the question of why one would extend the reluctance of this Court to extend categories beyond the ordinary rule; secondly, we would say that Brodie is inconsistent with the line of authorities. So we would submit that it is something which this Court has addressed and has not identified this category as being one which the Court should hold a non‑delegable duty exists.

Your Honour, if we had a free range, we would submit that, in fact, non‑delegable duty is in truth a fiction as a principle, but what one is, in fact, concerned with is what conduct is necessary in the factual context to avoid a breach of a duty. So that for a school, for example, to avoid a finding of breach of duty, it may have to do a great deal more in response to the existence of a risk. It may have to take a great deal more care of its primary school students than it might of its leaving year students. That is a relative and constantly moving question, namely, has the duty been discharged? What is a finding of breach involved in a particular case?

Standing back from it, a non‑delegable duty is a duty which says you have to do something more than ordinary to discharge your duty. However this situation has arisen, by whomever is acting, to discharge your duty you have an overriding obligation to check and ensure the safety. Your Honour, I do not wish ‑ ‑ ‑

GLEESON CJ: You would have a lot of trouble finding fault on the part of the Commonwealth in the facts of Introvigne. That was a case where the school was run by the State of New South Wales Education Department. The basis on which the Commonwealth was made liable, apart from vicarious liability which is a different issue, was that its duty was not simply a duty to take reasonable care of the pupils. Its duty was a duty to ensure that the State of New South Wales took reasonable care of the pupils. So it is a bit difficult, is it not, to deny that there is a difference, often an important difference, in quality between these duties that are described as non‑delegable and expressed in terms of a duty to ensure that reasonable care is taken and the ordinary duty, which is a duty to take reasonable care?

MR GARLING: Save and except – we would put it this way, your Honour. I have not come seeking the Court’s leave to overturn those decisions and I do not need to, but we would put it this way. Let it be assumed in Introvigne that the Commonwealth’s duty was to take reasonable care. The next step would be to ask: reasonable care in the context of what? Answer: a school with young students prone to mischief in a particular physical environment with an activity that was well known, swinging on the halyard of the flagpole that was connected to the piece at the top.

GLEESON CJ: The only thing the Commonwealth did was to get the Department of Education of New South Wales to run the school.

MR GARLING: Quite so, your Honour, and the question if the Commonwealth is to be found liable in that case and one had what we submit would be the ordinary construct would be to say because of the nature of the activity, ie, looking after young children who are prone to mischief, et cetera, that was involved, it had to do more than simply hand it over to the department but rather to take steps to double check.

HAYNE J: But the hypothesis is that it is not in breach of reasonable standards by doing so. If it is in breach of reasonable standards, no question arises. The hypothesis for debate is that the party in question has acted reasonably. If that is not so, no question. Then you are brought hard up against the proposition of what are the roots of the doctrine that says a party not shown to have acted other than reasonably should nonetheless be held liable. You are, again by hypothesis, outside the realm of vicarious responsibility. So what principle is engaged?

MR GARLING: We would submit that unless one can identify a person, a road user, as a class of people as being of the particular vulnerability or dependence of people such as school students or hospital patients, then there is no room for the concept of a non‑delegable duty.

KIRBY J: Why is a user of the highway not in a position of particular vulnerability, given that this is something which Parliament has assigned to you to be the authority and others attempting to do things are trespassers or engaged in a nuisance?

MR GARLING: But the question is: what is the notion of vulnerability about which one is speaking?

KIRBY J: The mass and variety of people using the footpath in Leichhardt. You have a microcosm there of the whole of humanity.

CALLINAN J: Even drive stock down the road unless there is some special reason.

MR GARLING: I saw that, your Honour, and I am sure it used to happen. But to answer Justice Kirby’s question, to say that a population as broad as road users, which is notionally the entire population of a city or a town or a State, is vulnerable, is to use the term “vulnerability” differently from that which this Court has identified as being necessary to give rise to a duty.

CRENNAN J: But it is vulnerable in relation to a dangerous activity, not just vulnerable generally.

MR GARLING: No.

CRENNAN J: It is in relation to the dangerous activity of repairing or working on the roads.

MR GARLING: Well, no, we would submit not necessarily so, your Honour, for this reason. If one takes school children, they are held to be a vulnerable class because of age, propensity for mischief, inability to care for themselves, et cetera. Patients in hospital who are dependent upon proper treatment being provided, medication being given, et cetera, are vulnerable because they cannot get out and do it for themselves. So that is the vulnerability of which the law of non‑delegable duty is talking, in those circumstances.

Now, if one is to say road users are vulnerable, one then has to say in which circumstance and in what respect. So one cannot then have a non‑delegable duty for a road authority, full stop. One is then saying, for example, to pick up your Honour’s example, a road authority owes a general duty and then one gets to what it seems Justice Hodgson was particularly saying, but if they create a danger either by themselves or by a contractor, then any road user is vulnerable to that danger. It says nothing of the class of road users. Whereas the notion of vulnerability in the relationship question in tort says everything about the particular person or the particular group of persons.

We would submit you cannot categorise vulnerability by relationship to risk. It has to be by relationship to the individual’s capacity, features and the like. So we would submit that the notion of vulnerability is broader than that which your Honour put to me and hence why it cannot apply to road users.

GLEESON CJ: Is one of the conceptual problems here that because everybody seems to agree there is no rigorously logical explanation for the principles of vicarious responsibility it would be surprising if there were a rigorously logical explanation for a qualification to a qualification about the principles of vicarious responsibility? After all, to speak of non‑delegable duty in a practical sense is often to say we will impose vicarious responsibility for the negligence of an independent contractor.

MR GARLING: Yes, your Honour, that is the effect of it, and we do so because of the nature of the particular class of people to whom the duty is owed and we do so where we identify what was described in Kondis and Brodie as the central element of control. But that is control, we would submit, which is different from a road authority. The other difficulty which is raises, your Honours, is this, that one cannot leave out of the equation that one is dealing with a branch of the tree of statutory authorities. The analysis when dealing with statutory authorities is to ask the question – I simplify it, I hope, not offensively – what is the power that the statutory authority had? Was its exercise of that power negligent or, alternatively, was its failure to exercise that power negligent?

One does not see that raised as a notion which intrudes into this discussion of a road authority having a non‑delegable duty and it is certainly not part of the English line of authority which concentrates on, in effect, have you created a danger ‑ ‑ ‑

KIRBY J: Except that one way of looking at the statute is that Parliament has provided that you, the local authority, may do the work. It has not provided that contractors can do the work. If you like to get a local contractor to do the work for you, why can it be said that you just do not have to wear the consequences because, unless you let them, the contractor would be a trespasser or performing a nuisance?

MR GARLING: The answer to that is to identify what is the power. The power is we have the power to undertake road works, works on roads. That power can be exercised by the local authority doing it or it can be exercised by entering into a contract permitting an independent experienced competent contractor to do it. So the exercise of the power is different in those two examples, your Honour, and we would say that where one has an independent contractor the question one asks oneself is: what is the power that has actually been exercised? The answer is: to enter into a contract – and let us assume it is an appropriate one with an appropriate contractor – for them to undertake the work, and that is the discharge of our power. Now, we of course would have an obligation to ensure the contract is properly performed, et cetera, but that is not the issue in this case.

GLEESON CJ: Some forms of roadwork might seem fairly innocuous, but the kind of roadwork that was in question in Brodie was – I realise it was a case of nonfeasance – obviously hazardous, that is to say, building or repairing a bridge. Was the question of non‑delegability of duty one that simply never arose for consideration in Brodie, because by hypothesis the work was not done by anybody?

MR GARLING: Correct, and the argument, as I recollect it, did not stray into that area, so it did not fall directly for consideration. The difficulty though ‑ ‑ ‑

HAYNE J: Thus the non‑delegability question that we are concerned with is concerned only with cases of misfeasance, is it not?

MR GARLING: It certainly is concerned with cases of misfeasance.

HAYNE J: Otherwise you trench upon the statutory reintroduction of the nonfeasance rule.

MR GARLING: Yes, in New South Wales that is so.

HAYNE J: And in a number of other States as well.

MR GARLING: Yes, and let us assume for a moment in the course of the debate and leave aside the statute, it must necessarily be so as well because the notion of nonfeasance merely suggests that there is no independent contractor or other person doing something for which the local authority would be liable. One then goes back to Brodie and says, “Was this something that should have been inspected or dealt with or was simply leaving it a permissible discharge of the duty?” So it can only arise in cases of misfeasance.

HAYNE J: Thus, the control that is focused upon is a very particular kind of control, namely, control over the work, control over the particular nuisance that otherwise would be effected. It is not control of the road system generally, for the authority is not liable for nonfeasance in respect of the road system generally.

MR GARLING: Yes, your Honour, we agree with that. The other thing is one has to be careful in looking at the decisions on non‑delegability that deal with the central element of control – because there were not in those cases two layers of control, except perhaps for Introvigne and your Honour’s elucidation of the facts reminds me that perhaps one had the State and then the Commonwealth, but to look at Kondis, the employer had control of the site where the independent contractor was working. It was their premises. The independent contractor was simply doing the job with a crane there.

Burnie Port Authority, the Port Authority had control of the premises, they had control of what activities were being done, and although the welding, I think it was, was being done by an independent contractor, the substance that caught fire had been introduced as a consequence of the conduct of the Port Authority permitting that particular substance to be stored there, as I remember it, or else in the premises. Control in the notion of a road authority, to explore what Justice Hayne put to me, is different from the control that the contractor has where they stand there every day and say, “Now we will get to the stage of putting the carpet over it” or “Now we will finish this work”.

HAYNE J: But the hypothesis is the Council should have that degree of control, should be there.

MR GARLING: That, of course, raises difficult questions of economics and policy. What is the point of engaging an experienced independent contractor if one is to send an employee of an organisation that may not have the same level of knowledge to supervise or exercise control? If one does not send one’s ordinary employee, one then has to engage an expert to do so. That does not seem to have anything to commend it.

Your Honours, may I take the Court to Brodie (2001) 206 CLR 512. I accept that non‑delegability did not arise directly in Brodie but there are some parts of Brodie which we submit tell against non‑delegability. I recognise, again, that Brodie, there was not a unanimous declaration of the common law, but may I take your Honours to the joint judgment. The judgment of the three Justices, Gaudron, McHugh and Gummow, which I will refer to as the joint judgment, commences at 538, paragraph 50. At paragraph 102 on the bottom of page 558, their Honours come to consider the interaction between negligence and statutory powers. At the top of 559 in that paragraph their Honours say:

Whatever may be the general significance today in tort law of the distinction between misfeasance and non‑feasance, it has become more clearly understood that, on occasions, the powers vested by statute in a public authority may give it such a significant and special measure of control over the safety of the person or property of citizens as to impose upon the authority a duty of care. This may oblige the particular authority to exercise those powers to avert a danger to safety or to bring the danger to the knowledge of citizens otherwise at hazard from the danger. In this regard, the factor of control is of fundamental importance.

Their Honours there refer to Burnie Port Authority. Their Honours, having given consideration to a number of other matters then at page 573, paragraph 139 under the heading “What should replace Buckle and Gorringe” commence a discussion of the unfolding of authority. In paragraph 138 in passing:

The abolition of the “immunity” would not move the law from the extreme of non‑liability to the other extreme of liability in all cases. There would not be imposed a duty which can be discharged only by repairing roads to bring them to a perfect state of repair. The opposite of “non‑repair” is not “perfect repair”.

139 The relevant considerations in expressing the duty of care that does arise involve the exercise of statutory powers such as those conferred by the LG Act upon the respondents. Those powers have been outlined earlier . . . The content of the duty of care to be owed by public authorities may be outlined by reference both to the fundamentals of the law of negligence and some of the decided cases. Many of these cases would fall to be decided the same way under an approach properly resting upon principles of negligence. In particular, cases imposing liability upon the criterion of “misfeasance” may be given a firmer footing on ordinary considerations of negligence.

Just pausing there, your Honours. Appreciating that non‑delegability did not directly arise there would at that point in the discussion of their Honours be an occasion to draw attention to the fact that in cases of misfeasance there may, in fact, be a higher duty by reason of the notion that the English authorities referred to, namely the creation of danger. Their Honours then go on at page 577, paragraph 150 to come to the ultimate question. Their Honours say in paragraph 150:

The duty which arises under the common law of Australia may now be considered. Authorities having statutory powers of the nature of those conferred by the LG Act upon the present respondents to design or construct roads, or carry out works or repairs upon them –

Now, pausing there, your Honours. Justice Hodgson, in supporting the New South Wales line of authorities, sought to distinguish this case on the basis it did not address misfeasance where construction or repair was undertaken. We would submit his Honour was wrong to make such a distinction, because their Honours go on to say:

carry out works or repairs upon them, are obliged to take reasonable care that their exercise of or failure to exercise those powers does not create a foreseeable risk of harm to a class of person (road users) which includes the plaintiff. Where the state of a roadway, whether from design, construction, works or non-repair –

in other words, their Honours are encompassing both misfeasance and nonfeasance –

poses a risk to that class of persons, then, to discharge its duty of care, an authority with power to remedy the risk is obliged to take reasonable steps by the exercise of its powers within a reasonable time to address the risk. If the risk be known –

et cetera. I do not need to read that part to your Honours.

KIRBY J: The problem with this sort of analysis is it is pretty clear that the non‑delegable duty argument was not advanced in Brodie and therefore the Court has not, either in the majority or in the dissenters, focused its attention on this issue and perhaps it did not have to. If you can find, as Justice Hayne has been putting to you, the personal liability, you do not go into the suggested extra category. That is a sort of superadded and, therefore, all of this is a search for words that do not exist because (a) they were not put to the Court and (b) they were not really necessary.

MR GARLING: I accept that, of course, your Honour, and I did say in introducing this that it was not directly in issue, but it is important, your Honour, to note that there was nothing that commended itself in this judgment to the reason to distinguish between misfeasance and nonfeasance. In fact, the notion of this judgment is that there was no basis for distinguishing between the two. One had to provide a unifying statement of duty which covered nonfeasance and misfeasance cases and that is what the joint judgment searched for and identified in paragraph 150. Now, your Honour, they were also careful to say ‑ ‑ ‑

KIRBY J: Hopefully, in thinking about it, it would have been very relevant in one sense to the argument of personal obligation of a general kind to have picked up what had been said in the English cases and in the New South Wales Court of Appeal by that time and said, “Well, steady on, you are all forgetting there is this extra dimension of super liability for highway authorities”.

MR GARLING: Well, Scroop was, in fact, footnoted in the course of this decision as an example of a particular way in which liability may arise in the circumstances of the factual construct, but not the legal – duty was not identified and the judgment which footnoted that case did not say it was right or wrong or did not otherwise discuss it. But it is important to note that their Honours in paragraph 151 at the very bottom of page 577 and across a word on the top of 578 say:

The duty does not extend to ensuring the safety of road users in all circumstances.

Now, your Honour, to the extent that one is dealing with a non‑delegable duty which says the duty is to ensure that reasonable care is taken, we would submit that that statement there is a statement which evinces an approach which is inconsistent with a non‑delegable duty.

KIRBY J: Do you say Scroop was footnoted in Brodie?

MR GARLING: Yes.

KIRBY J: It does not appear in the list of cases cited.

MR GARLING: At page 578, footnote (334), which is coincidentally just at the bottom of where I was taking the Court to, there is a footnote to the decision in Scroop “(bollards misled as to position of edge of road)”. One goes back up to the body of the discussion in the judgment where it says:

The road markings may create, conceal or mislead as to the existence of a danger in the road surface, or the design of the road or structures on it may present a concealed danger.

But the question of whether one or more than one party was liable for that is not adverted to.

HAYNE J: There is a number of references to Scroop, including at 572, paragraph 136, footnote (296), which is perhaps the closest you get to any reference to the kind of problem with which we are concerned, but it is an oblique reference.

MR GARLING: Absolutely, your Honour, and I do not suggest that what it was talking about fell for direct consideration, but we do submit that the notion, which we submit is correct, that when the joint Justices formulated their view as to what the duty was, they were careful not to formulate it as extending to ensuring the safety of all road users in all circumstances.

KIRBY J: They were individual Justices.

MR GARLING: They were, your Honour.

KIRBY J: They had joint reasons in this particular case.

MR GARLING: They were. To the extent that your Honour Justice Kirby came to the question of duty, it is to be found in ‑ ‑ ‑

KIRBY J: I see all the citations of Scroop came in the joint reasons and presumably as a kind of illustration of the unconceptual mess we are getting ourselves into with solutions of a particular kind instead of trying to get it back to the doctrine.

MR GARLING: Yes, but your Honour says at page 604, paragraph 239:

These conclusions leave the liability of the respondents to be determined by the ordinary principles of negligence law as applied to a statutory authority with relevant duties and powers.

Then your Honour goes on to consider questions that do not directly apply and then your Honour touches again on the question, but I do not suggest in any direct detail, at paragraph 243.

KIRBY J: Do any of the English cases deal with non‑delegable duty in the case of nonfeasance?

MR GARLING: I do not believe so, your Honour. I believe they are restricted to misfeasance.

KIRBY J: Perhaps that could be checked if you would not mind.

MR GARLING: Yes, I will certainly do that, your Honour.

CALLINAN J: Mr Garling, in Brodie it seems that the joint judgment disapproved of what was said in Buckle v Bayswater 57 CLR 269 at 281 in the reasons of Justice Dixon, but there is a statement of the duties by his Honour at page 283 which certainly does not suggest in the case of misfeasance there is a non‑delegable duty of care. His Honour speaks at about point 7 of:

a road authority in doing [the works] . . . is not protected if it creates dangers which reasonable care and skill could avoid.

That is not expressly disapproved and I do not know whether that statement is inconsistent in a case of misfeasance with the holding of the majority in Brodie.

MR GARLING: It is certainly inconsistent with the notion of the imposition of a non-delegable duty.

CALLINAN J: The only question is whether anything in the reasons, the decisive reasons in Brodie, renders that inoperative or inapplicable, as it were.

MR GARLING: Yes. I do not recall in Brodie any specific reference to and disapproving of the reasoning. There seems to be expression of dissatisfaction of the result ‑ ‑ ‑

CALLINAN J: They say it is a discredit to Australian law, the joint judgment - there is the distinction and expressly disapproves of what is said at page 281 but not elsewhere, I do not think, I do not know. I am just raising a question.

MR GARLING: The way in which it seems to us that the joint judgment resolves that is at paragraph 134 on 572 and following where they say:

It is apparent that the “highway rule” as it has developed in Australia is an unsatisfactory accommodation of the competing interests.

Therefore, what should flow from it seems to be a more general approach rather than a specific criticism of one or other set of reasons or findings in Buckle.

Your Honour, may I, although recognising that your Honour was in dissent in Brodie, just remind your Honour Justice Hayne and the Court that in paragraphs 307 and 308 of Brodie your Honour dealt with the question of whether a special dependence or vulnerability provided a useful test for statutory authority liability, and your Honour remained unconvinced that

there was a significant difference between that and the notion of general reliance in ‑ ‑ ‑

HAYNE J: Being writ in water, Mr Garling, it is a dissent.

MR GARLING: That is true, your Honour, but I thought I would respectfully remind your Honour of what was said there.

GLEESON CJ: Does that bring you pretty much to the end of your argument?

MR GARLING: Very close, your Honour, yes; simply to say, having taken your Honours to that part of Brodie, we would say for the reasons which we previously put, it is a non‑delegable duty and would be inconsistent with the way in which duty was formulated, at least in the joint judgment in Brodie, except that I need just to come back to the question of whether nuisance specifically deals with and tells against ‑ ‑ ‑

GLEESON CJ: Perhaps you could put in some written material on that ‑ ‑ ‑

MR GARLING: May I have your Honour’s leave to do that?

GLEESON CJ: Yes, within 14 days, and your opponents would have a further seven days after that to put anything in ‑ ‑ ‑

MR GARLING: I am indebted to the Court, and they are our submissions.

GLEESON CJ: Thank you, Mr Garling. Yes, Mr Miller.

MR MILLER: Thank you, your Honour. Your Honour, there were a number of matters put which perhaps it would be best if we address firstly. It is our submission that both at trial and before the New South Wales Court of Appeal, the respondent contended, and seeks to contend here, that there was negligence on the part of the appellant itself independent of the negligence of its contract to Roan.

GLEESON CJ: Did you get any findings at either level on that?

MR MILLER: No. Your Honour asked me that on the leave application and I indicated no, not in specific terms.

KIRBY J: Well, you did not seem to be very certain of the transcript on the leave application.

MR MILLER: No. We have gone back through it. It is said against us here in a reply that we did not file our notice of contention in the Court of Appeal. That is not correct. If we can take your Honours to the notice of contention your Honours will see that it has the Court stamp on it.

GLEESON CJ: Yes, but this problem does not arise if you are successful on the main issue.

MR MILLER: I appreciate that.

GLEESON CJ: But if you fail on the main issue, the question is whether we should remit the matter for findings to be made on this issue of breach of duty.

MR MILLER: As your Honours please.

KIRBY J: Except that, as Justice Hayne has said now three times, I think, if the Council is personally liable you do not get to issues of the superadded exceptional doctrine and one would think, at least logically, the first thing is to ask if it is in issue is, is the Council personally liable? The fact that the learned judges did not do so rather suggests to my mind that it was not in issue, at least as they understood it.

MR MILLER: Well, could I explore that, your Honour, and address a matter which was not addressed finally raised by Justice Kirby. Your Honour might recall that you were taken to the specifications and your Honour commented, as I recall, “that was for the purposes of cleanliness”, that is laying down the carpet.

However, it went further than that. It was part of a system which was devised by the Council and specifically devised by Mr Fitzpatrick‑Barr, Council’s engineer. It was devised against the background of Council being aware that there were pits, that the work had to be done on pits and that it would be necessary for the footpath or footway levels to be altered.

Can I take your Honours to page 260 of the appeal book. How this arose was, as your Honours will see at pages 253 and following, the Council had to make a submission to the Roads and Traffic Authority concerning its proposed pedestrian barrier which was initially intended to provide – they call them jerseys. They are concrete barriers which were to be extended across the inside or first lane to provide access there. It was necessary for it in effect to put in an application, somewhat akin to an application for development consent to a responsible authority.

But the works that were to be undertaken on the footpath were required to be assessed, all works to be assessed, and Council itself at page 260, line 5 states this:

The preliminary investigations that have been undertaken as part of these works –

and this is over the hand of the Council’s manager of parks and streetscapes –

have revealed that there are no alterations to existing services required. The only works, which pertain to services, may be the adjustment to pit lids as part of the pavement upgrade.
This would be the removal of the existing pits and the addition of pits with the banded paver inserts as and when required.

It was always envisaged (a) that there were pits there, that the nature of the work could impact upon the pits. Your Honours were taken to the specifications. They fell into two categories and that was at page 300 of the appeal book. First of all the general nature of them, the nature of hours of work and, as your Honours have heard, the original specifications had to change because they could not obtain access that they wanted from the RTA and then at line 30:

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.

Your Honour Justice Kirby, as I recall, said, well, that is really – and it was agreed – for cleanliness purposes. However, Mr Fitzpatrick‑Barr agreed in cross‑examination that it was always going to be part of the execution of these works. If I could take your Honours to AB 92 and following, he was asked this in cross‑examination, first of all that works which ceased between:

Thursday night to Saturday night all inclusive . . .
no works were to be undertaken . . .
Q. That was not how you originally envisaged the works proceeding . . .

Q. In relation to works that were not completed, that is partly done –

and if I might pause, if one went back to the specifications, the road bases, the then existing bitumen footpath was dug up, it was regraded. It was intended that there be road base placed down and that ultimately pavers be laid down, but in the meantime:

In relation to works that were not completed, that is partly done, your understanding was that carpet would be laid over those works?
A.       Correct.
Q.       You would reasonably expect that pedestrians would then walk upon the carpet?
A.       Correct.
Q.       And walk upon what was ever underneath the carpet?

So that was part of the work system. We say that that itself was a failure on the part of the Council ‑ ‑ ‑

KIRBY J: But who could ever expect that a subcontractor would put a carpet over a hole?

MR MILLER: Because they were obliged to put a carpet over whatever was underneath.

KIRBY J: But that is in order to make it clean, not to disguise the hole. I mean it is a ridiculous thing.

MR MILLER: Your Honour knows Parramatta Road.

KIRBY J: I went to school just near there, I know that area very well, but I am not going to have another look. I do not want to ‑ ‑ ‑

MR MILLER: We say that it is not unreasonable that if your Honour were going out down Parramatta Road at eight o’clock at night and you saw carpet on the ground and you were not prevented from going there that you would have a reasonable expectation you ‑ ‑ ‑

KIRBY J: Of course, I accept that entirely. There is no contributory negligence on the part of your client; your client did what was entirely reasonable. The question is whether the Council did what was unreasonable by saying put carpet down for cleanliness, we want red‑carpet treatment for these ratepayers.

MR MILLER: They did not confine it to cleanliness, they confined it to being that upon which persons would walk when they could not see anything, they had no idea of what might be underneath it. The test simply gets down to this, your Honour. What did they do after it was found there was a hole in the pavement.

KIRBY J: Their answer is like the case of Boylan they got a very reliable subcontractor.

MR MILLER: Yet, they cannot even maintain that. They attempted to maintain that at trial, objection was taken, the objection was upheld. Any question as to the quality or competence of the ‑ ‑ ‑

GLEESON CJ: Perhaps we could come to this after lunch.

MR MILLER: Thank you, your Honour.

GLEESON CJ: We will adjourn till 2.15.

AT 12.50 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.21 PM:

GLEESON CJ: Yes, Mr Miller.

MR MILLER: Thank you, your Honour. Your Honour, briefly I just only want to deal with a couple of other matters in relation to the dangerous position in relation to negligence per se, and I am mindful of what the Court has indicated, and that our stress will be upon the non‑delegable duty. It was raised against us on a number of occasions that there was a presumption of an independent, as I recall it, competent contractor. Objection was successfully taken at appeal book 77.45 and ruled on at AB 80.3 against any attempt to adduce that evidence as it had not been pleaded against us.

In relation to the activity of the Council, it is our submission that the system that was mandated by the Council was itself dangerous. It created a dangerous situation. All they needed to do was require duckboards to be put down over the work that was being undertaken.

GLEESON CJ: Mr Miller, there is one aspect of the facts that I have not understood. I am not suggesting it is of ultimate importance, but was the carpet placed over a pit that had a lid that only partly covered the pit or was the carpet placed over a pit that had a broken or unstable or rotten lid that collapsed when your client put his weight on it?

MR MILLER: The finding of fact was that the carpet was placed over a pit with a broken lid. Can we provide to your Honours perhaps what might be clearer copies of the photographs? The ones in our ‑ ‑ ‑

GLEESON CJ: I was wondering why other people – was your client the first person to actually put his foot on the spot?

MR MILLER: There were three of them walking down the footpath. He was the closest to the front of the shops. Normally one would expect that perhaps one walks out from – but they were walking three abreast.

KIRBY J: This was a Saturday morning and they could not work after Thursday night, so ‑ ‑ ‑

MR MILLER: It was a Saturday evening at 8.00 pm.

KIRBY J: Saturday evening?

MR MILLER: Yes, they were going out in the ‑ ‑ ‑

KIRBY J: Even more so. Two full days and nobody put their foot on this carpet with the hole underneath.

MR MILLER: It may well be what the Chief Justice said. They have come around the corner, they are walking downhill, normally perhaps not walking three abreast, and he had the misfortune of being closest to the front of the buildings. Could I just ask if your Honours’ copies are clear. Ours in our book of photographs were not particularly clear.

KIRBY J: If you have clearer ones, why do you not hand them up.

MR MILLER: I will just hand them up if I may. I have provided five copies. Our printing is not clear either. The first photograph which does appear in the exhibits shows the photo taken by the plaintiff – as my learned friend said, by his wife actually ‑ ‑ ‑

GLEESON CJ: That shows that at some stage that lid broke.

MR MILLER: Yes, and what he said was that his foot went into a hole. It was suggested but not found in favour of the defendant/appellant that perhaps it was just a hairline crack and that it cracked under his foot. It was found that it had a broken pit lid. Carpet was not placed along the footpath in a consistent manner. There were pieces of carpet that were put in a random fashion. Your Honours will see in photograph No 4 photographs taken on 11 March 2003 and the pit is to be seen just in front of a ‑ ‑ ‑

HAYNE J: Next to the “Happy Hookers” sign.

MR MILLER: Well, your Honour’s eyes are better than mine, yes. We buy and we sell. I hope it was not for any other purpose.

HAYNE J: I think we had better move on quickly.

GLEESON CJ: Yes, do not go down that path.

MR MILLER: I am reminded of the judgment of the Court of Appeal at paragraph 19, the last sentence:

Accordingly, the primary judge was justified in finding negligence in whoever placed the carpet over the hole.

The preceding sentence is:

in my opinion, the plaintiff’s evidence was to the general effect that there was a piece of the pit cover missing; and it was open to the primary judge to infer that it was not a case of weakened pit cover giving way under the weight of the plaintiff, but rather a case of carpet being placed over what was in effect a hole in the footpath.

But as to why he was unlucky, my own thoughts are that he was one of three abreast closest right to the edge. It is interesting to note that it was a month before the Council itself did anything about putting a piece of board over the hole to make it safe.

GLEESON CJ: That would have been a fairly important finding of fact. If all that was there before the carpet was laid was a pit cover with a hairline crack in it, for example, it might have been a bit hard to say that there was negligence on anybody’s part.

MR MILLER: That was argued and rejected. Your Honours were taken to the Roads Act. I am sorry – notices of contention, I will say only this about them. Against us it was said in reply that we did not file a notice of contention in the Court of Appeal. That is not correct. The filing stamp appears on it at AB 417 and at AB 380. My learned friend, although in somewhat uncharitable remarks, did not necessarily accept that by its terms it was a notice of contention. He was asked and he said it was the most generous construction of the document. He said that he had no difficulty in addressing it.

KIRBY J: Now, I am getting a bit lost because we need to know how you are advancing the case. You have two irons in your fire, as I understand it. You say they were right about non‑delegable duty, but in any case why our notice of contention we put in issue the personal liability. Now where are we in your argument?

MR MILLER: Well, I was just dealing with the latter. As I understood, it was said to us ‑ ‑ ‑

KIRBY J: Is that the preferred way that you advance the case in this Court?

MR MILLER: Yes, your Honour, we say there was negligence independent in any event, but I understood what ‑ ‑ ‑

KIRBY J: Why did Justice Hodgson not understand that to be the way you were advancing it in the Court of Appeal because he says there is only this issue on negligence and liability and that is the question of the delegable ‑ ‑ ‑

MR MILLER: The primary judge gave a judgment which was based on non‑delegable duty of care. It is said against us that we did not put the case on any other basis at first instance and to that end my learned friend has filed an addendum to the appeal book which contains the oral submissions. We have sought leave to file an addendum to the appeal book which, in addition, contains written submissions which were put before the trial judge in which, what I will refer to as primary liability by reason of negligence, was put as well as non‑delegable duty. Now, the trial judge found non‑delegable duty and we filed a notice of contention in the Court of Appeal.

KIRBY J: Is the appellant opposing your having leave to place this additional material which you say is in response to their additional material, or not?

MR MILLER: Well, we have not heard. We do not object to theirs provided that their written submissions go in.

MR GARLING: Your Honour, we cannot object to the placing before this Court of any material which might assist to elucidate the question, whether the case was argued at trial, and we do not.

GLEESON CJ: What you are inviting us to do is make a finding of fact on a matter that has not been the subject of any finding of fact in the courts below that renders the question of non‑delegable duty simply irrelevant.

MR MILLER: I am conscious of what your Honour said, and as I took what your Honour said, it was to the effect that in those circumstances if you were against us on the question of non‑delegable duty, your Honours would remit the matter to the Court of Appeal.

GLEESON CJ: No, we have not made any decision about that, but you would have to address that obvious possibility.

MR MILLER: As your Honour please. Well, dealing briefly with the question of what I will refer to as the independent acts of negligence, they are to be found in this way. First of all, they were pleaded in the amended statement of particulars. They were pleaded, yes, it was in identical terms against both ‑ ‑ ‑

CALLINAN J: They were pleaded very, very generally, but the defendant never asked for particulars.

MR MILLER: No.

CALLINAN J: Defendants often do not do that because they do not want to focus or concentrate the mind of the other party upon matters that might be dangerous for them, and if they accept the generality of the allegations without seeking particulars, then they are stuck with them.

MR MILLER: Yes, as your Honour please. They also did not at trial after the matter had been settled against Roan Constructions seek to call anyone from Roan Constructions. We called an expert, although it is one of those cases you query really whether any expert is needed to say that placing a piece of carpet over a footpath under repair is itself inherently dangerous, but that was the case. As I said, in relation to Mr Fitzpatrick‑Barr, we cross‑examined him. He was not re‑examined.

KIRBY J: Well, let us go back to basics. Where is your allegation that you say brings you within the matter that is raised in the notice of contention - personal liability of the Council?

MR MILLER: Particulars of negligence – and I agree it is accepted this ‑ ‑ ‑

KIRBY J: What page?

MR MILLER: I am sorry, AB 5 at line 35 and following.

KIRBY J: Yes, they were the particulars that I referred to earlier that were very general.

MR MILLER: They were, your Honour – 10(a), 10(b), 10(c) in particular, 10(d), 10(e), 10(f), 10(g) and 10(h).

KIRBY J: There is not there I think the ground or the particular that you mainly rely on in the written submissions, which is that if they were going to do this on that busy thoroughfare, they should have blocked the whole area off ‑ ‑ ‑

MR MILLER: No, that, we would have to say, comes under the rubric of (a) and – no, that is as far as I go, or as far as I can go ‑ ‑ ‑

KIRBY J: That is what you particularise, but my experience is that often they are everything somebody could dream up in their chambers on a Saturday night and that at trial it tends to come down to something a little bit more particular.

MR MILLER: It did in the written submissions, your Honour, which were prepared by Mr See and which were the subject of argument - oral address to the trial judge. Those written submissions are to be found in a document entitled “Addendum to Appeal Book” ‑ ‑ ‑

KIRBY J: Is this your reply to the appellant’s reply? Is that where it is found?

MR MILLER: They put on an addendum to the appeal book; we put on an addendum to the appeal book. Theirs they put on the transcript of oral submissions before the trial judge. We put on in addition the written submissions which were provided to the trial judge and which are referred to in those oral submissions.

KIRBY J: But if in fact it is not in the oral submissions, would it be a fair inference to draw that that is the explanation of why Justice Hodgson and the primary judge did not deal with it, because though you had it in the written submissions and though it was within the ambit claim of the particulars in the statement of claim, you were not really advancing that case as the real issue for trial.

MR MILLER: I think in part, yes. The answer to that was – it is difficult to recall now but my recollection was that in the Court of Appeal we put that we had before the trial judge contended for negligence independent of non‑delegable duty but that the trial judge confined herself to non‑delegable duty.

GLEESON CJ: Was it put to the man with the double-barrelled name ‑ ‑ ‑

MR MILLER: Fitzpatrick-Barr.

GLEESON CJ: Was it put to him in cross‑examination that the whole thing should have been closed off?

MR MILLER: Not closed off, no; that was not put to him, as I recall it.

KIRBY J: But was anything put in cross‑examination of him that suggested that you were not bringing the claim in respect of the momentary lapse of care on the part of the subcontractor but the continuing bad system and bad conduct of the Council?

MR MILLER: Yes, your Honour. What we put ‑ ‑ ‑

KIRBY J: You had better take us to that page.

MR MILLER: Certainly, your Honour. I started this morning ‑ ‑ ‑

GLEESON CJ: Just take us directly to the most confronting challenge to him suggesting to him that he was negligent.

MR MILLER: Certainly.

KIRBY J: The question that would have led him to blanch.

MR MILLER: No, he was not of that nature, your Honour.

GLEESON CJ: Would he have left the witness box without realising that somebody was suggesting he had been negligent?

MR MILLER: No.

GLEESON CJ: That is a reasonable test, is it not?

MR MILLER: He was a very pleasant fellow.

GLEESON CJ: And nobody wanted to disturb his equanimity.

MR MILLER: As Mr Justice Hodgson said, he probably did his best to tell the truth but he could not remember very much. He certainly did not have any system which ‑ ‑ ‑

GLEESON CJ: Was it being suggested to him that it was his fault that your client had a broken leg?

MR MILLER: Yes. Could I start, your Honours, at page 86, line 10:

Q.       Sir the works that were involved - were you the person within Council who was responsible for drawing up the specifications
A.       Correct.
Q.       And were you the person that was responsible within Council for the letting of the sub-contracts?
A.       Correct.

Then I drew his attention to the presence – of having become aware of a pit that had a broken lid. That was correct. Then in May 2001 he arranged for someone from his Council to attend with a sheet of plywood and make it safe. Then we asked him at 87 – he was given a notice to produce calling for any documents evidencing any system of inspection regarding the footpath in either 2000 or 2001. He was not aware of any documents that fell within that category. He was not sure whether he maintained any documents within that category. At 87 he did not keep a record of when he went there. That followed through at 87, line 55. He did not make any records of his attendances there, did not provide any report.

I then asked him about a dilapidation report. As a civil engineer he knew what that was, that, namely, before works are undertaken as a result of inspection being carried out. Yes.

Q. You are not aware of any dilapidation inspection being undertaken?

Correct. Then I pressed him on that and at 88, line 25 he said:

A. However, Council undertakes, as part of AAS27 regulations, footpath inspections for the entire municipality approximately every five years.

He then maintained that they had a database at line 35. He was not able to produce anything from the database. As I said earlier, your Honours, there was no re‑examination of him, so there was no ‑ ‑ ‑

GLEESON CJ: Any question that begins, “It is my melancholy duty to put to you ‑ ‑ ‑

MR MILLER: Well, as close as we got to that I suppose was 92, line 30, putting to him the hours of occupation:

Q.       Between the cessation of work Thursday morning until the commencement of work Sunday night, no works were to be undertaken?
A.       Correct.
Q.       That was not how you originally envisaged . . . it?
A.       Correct.
Q.       In relation to works that were not completed, that is partly done, your understanding was that carpet would be laid over those works?
A.       Correct.
Q.       You would reasonably expect that pedestrians would then walk upon the carpet?
A.       Correct.
Q.       And walk upon what was ever underneath the carpet?
A.       Correct.

Now, I accept what your Honour the Chief Justice said is we did not say to him, “Well, wasn’t that a silly system?”

GLEESON CJ: The question is whether you gave him a fair opportunity to defend himself against the criticism of negligence.

MR MILLER: Well, we certainly gave him fair opportunity to defend himself against what we say was blindingly obvious, that you would not undertake works on a footpath ‑ ‑ ‑

KIRBY J: Yes, but if it is blindingly obvious, it is blindingly obvious to the subcontractor and a council securing a person who is apparently competent and has insurance and all the other requirements.

MR MILLER: Well, none of that is established, your Honour. It is not established that they are competent. It is not established that they have insurance. None of that is established.

KIRBY J: Yes, but they are a contractor. You would assume that they have the competence to do a job and not to put a carpet over a hole in the footpath.

MR MILLER: One would reasonably expect that a council would never require a footpath to be repaired in such a fashion, but that is what the Council’s engineer said they wanted done.

KIRBY J: No, the Council had the requirement of a carpet for reasons of cleanliness and that is what their specifications stated.

MR MILLER: Your Honours, if I can take your Honour back to 92, line 35 and following:

In relation to works that were not completed, that is partly done, your understanding was that carpet would be laid over those works?

KIRBY J: Yes, but not over a hole in the footpath. I mean, who would believe that a responsible council would do that, would require that, would expect it.

MR MILLER: No, not require it, but not guard against it. Any responsible council, we submit, your Honour, reasonably exercising a duty of care in respect of anyone that is going to walk upon a footpath which is under repair, would require something hard in the nature of duckboards to be laid down. If they want to additionally either improve the appearance or to cut down dust they could put carpet over that, but you do not ‑ ‑ ‑

KIRBY J: It is true, as you say, that you did not simply concentrate on the error of the contractor and cross‑examine for the purpose only of establishing anything relevant to the non‑delegable duty. You did ask questions relevant to the personal liability of the Council. You did that, but on the other hand, you only appear to have laid a glove on two points, namely, one, a system of inspection and, two, if this was raised, the very specification of a carpet which was an unsuitable specification. It should have been a board or some other such thing.

MR MILLER: But, a third point, your Honour.

KIRBY J: Was there anything else? You did not ‑ ‑ ‑

MR MILLER: Yes, the third point inherent in that and the words:

In relation to works that were not completed, that is partly done, your understanding was that the carpet would be laid over those works?

So, in other words, you dig up the footpath and whilst it is in the course of being dug up you require carpet to be laid on it. But I cannot take it further than that, your Honour. Your Honour Justice Kirby asked about any articles. In our submissions, we do draw attention ‑ ‑ ‑

KIRBY J: This is on what point?

MR MILLER: I will go to non‑delegable – no, I am sorry, I will come to that in a moment. Your Honour, can I deal with the provision of the Roads Act that were referred to.

CALLINAN J: Just before you do that. On the facts, can you tell me where in your submissions, that hand up you have given us, you dealt with the independent direct liability of the Council? No need to read it, if you can just give me the page reference.

MR MILLER: Certainly, your Honour. Was your Honour Justice Callinan referring to the ones that were before the trial judge?

CALLINAN J: The trial judge, yes.

MR MILLER: Certainly, your Honour. Your Honour has there plaintiff’s submission ‑ ‑ ‑

CALLINAN J: Would you like to do it later? It does not matter.

MR MILLER: I had them here a moment ago, your Honour.

CALLINAN J: Perhaps your junior can do that.

MR MILLER: There are plaintiff’s submissions regarding liability, they were in‑chief. Then there were submissions against us.

CALLINAN J: Just give me the page numbers later, Mr Miller.

MR MILLER: Certainly, your Honour. I had it here a moment ago. It is in the addendum to the appeal book, that is our addendum, which is a document which has first of all a document which we had filed in response to the applicant’s reply in the application book. Then there are a number of printed pages, “LESLIE HAROLD MONTGOMERY V LEICHHARDT MUNICIPAL COUNCIL” “Plaintiff’s submissions regarding liability of first defendant”. At paragraph 6 we referred to Brodie, paragraph 150; paragraph 8:

In these circumstances, the Council had a particular responsibility for the care of pedestrians involving a high standard of care which it is unable to delegate to an independent contractor: viz Scroop @ 238 lines 5 to 15, Burnie Port Authority 179 CLR @ 551.

Then Scroop is referred to at paragraph 9. Paragraph 12, we say, is submission of liability directly, although it could also be read as being non‑delegable duty.

GLEESON CJ: Just pause on paragraph 13 for a moment. If there was an issue about whether the Council was directly liable, why was the evidence about its selection of a careful and competent contractor irrelevant?

MR MILLER: We are not saying it is irrelevant but the way – is your Honour referring to ‑ ‑ ‑

GLEESON CJ: Paragraph 13 of your written submissions that is in front of you now.

MR MILLER: Yes.

GLEESON CJ: I am not suggesting it might have been conclusive.

MR MILLER: No.

GLEESON CJ: Why was it not even relevant?

MR MILLER: It could be relevant, your Honour, I would have to say to that.

GLEESON CJ: But the trial judge actually rejected the evidence and rejected an attempt by the defendant to lead evidence of the selection of a careful and competent contractor on the ground that it was irrelevant, did she not?

MR MILLER: No, it was rejected on the basis that it was not a case that was ever made against us, and there was no appeal against that, your Honour, to the Court of Appeal against the rejection of that evidence. The Council in the Court of Appeal was represented by my learned friend, so it was never something that – at first instance the Council’s position was basically that it was not the road authority, which seems to have fallen away. I am sorry if I am misled there, because the submissions in reply that were given to us, the written submissions addressed whether it was the correct road authority, but I will stand corrected on that.

KIRBY J: Could you just help me with the written submissions? Where does it most clearly speak of the personal liability of the Council other than pursuant to the non‑delegable duty? In paragraph 9 it says:

The Council owed a duty of care to the Plaintiff and it is directly liable to him according to established principles of the law of negligence.

But then there is the reference to Scroop, which suggests that it is the non‑delegable duty that is being relied on. Is there somewhere ‑ ‑ ‑

MR MILLER: Well, paragraph 12:

The Council had at all times a duty to ensure the works on the footpath were conducted with due care in accordance with the principles in Brodie.

KIRBY J: Yes, but is there anything here that refers to particulars of negligence, namely, not a good system, a wrong specification to lay carpet as distinct from a flat board over and roping off or failure to isolate the area?

MR MILLER: Certainly roping off was not put, your Honour.

CALLINAN J: But Mr Miller, does not the appellant deal – I am not talking now about the specifics of it, but does not the appellant deal with such a submission made by you in paragraphs 10 and 11 of its written submissions which you handed to us, the defendant’s further submissions on liability. Paragraph 10:

In any event if one were to accept that the council had a relevant duty of care the plaintiff has presented no evidence that the council had failed to do something –

In the next paragraph:

In those circumstances for the Court to find that the council is liable to the plaintiff –

That seems to me to be an attempt to deal with an independent duty of care, irrespective of delegability or otherwise.

MR MILLER: I accept that, your Honour.

CALLINAN J: So something must have been said or submitted or referred to that provoked that submission and the submission that there was some evidentiary gap which you had not breached, which is another question. It seems to be right. It certainly seems to be what the respondent is dealing with.

MR MILLER: I think we must accept what your Honour Justice Callinan says in that regard.

GLEESON CJ: Well, if you look at the judgment of Judge Quirk on page 305 of the appeal book beginning at line 9, she summarises your argument on liability ‑ ‑ ‑

MR MILLER: I am sorry, could I just go slowly, your Honour, if I may?

GLEESON CJ: Yes, appeal book 305, line 14. Then she says, “I will put that to one side for the moment”, and goes on to the facts.

MR MILLER: Yes, I accept that that is what I put, your Honour.

GLEESON CJ: Then when she comes back to liability, she resumes again at page 323, line 50, and proceeds to give reasons for that conclusion, and nowhere does she mention any issue of a kind that would have involved passing judgment of whether Mr Fitzpatrick‑Barr had been personally negligent.

MR MILLER: I accept that, your Honour.

GLEESON CJ: Am I right in thinking, by the way, on what you now put as the case of direct liability if there were negligence on the part of the Council, it was Mr Fitzpatrick‑Barr who was responsible for it?

MR MILLER: As he was the person apparently exercising all of the authority, yes. He was the engineer and I think he is referred to as a team leader. He was the person who drew up the specifications, he was the person that let it out.

Can we go to the question of the Roads Act. Reference was made to section 146(1)(d), Council not being the occupier. I must say it was a section that we had difficulty in understanding what its relevance was. It simply provides:

(1)Except as otherwise provided by this Act, the dedication of land as a public road:
. . .
(d)does not constitute the owner of the road as an occupier of the land –

As I understood it, there was no argument advanced here. It is our submission the question of whether an occupier or not is irrelevant with respect to the duty imposed on a highway authority. That – I think the Court was taken to earlier – was in Buckle. It is referred to in Brodie at page 576, paragraph 148:

In Buckle, Dixon J had disavowed any analogy between the position of a highway authority and that of the ownership or occupation of private property.

In relation to Scroop in non‑delegable duty, what we have sought to do is trace as we could find it the history of its development. Justice Kirby raised the question of any articles by academics. At footnote 2 which is on page 6 of our submissions we refer to the article, “Non‑delegable Duties in the Law of Negligence, McDonall and Swanton, 69 Australian Law Journal ‑ ‑ ‑

KIRBY J: That is a rather short article which is really a commentary on Kondis.

MR MILLER: It is, your Honour, yes. Then there are two other articles by Professor Swanton in the Journal of Contract Law which we also refer to there. All we picked up at paragraph 24 was the author’s criticism of the term “non‑delegable duty” which we have set out in paragraph 24.

KIRBY J: You are hanging onto the decision of the Court of Appeal which rests on its line of authority and on English authority. What is your answer to the criticism that this is adhockery at its worst, that the whole effort of the High Court in the last 15 years has been to try and get negligence back to some general principles instead of categories and that it is just unconceptual, unconvincing and unlegal?

MR MILLER: Your Honour, we say that there is a consistent theme that runs throughout the UK authorities and throughout the Australian authorities and it is a concept of control and vulnerability in the circumstances of the particular case or cases under question. There is nothing in Brodie which is inconsistent with the finding that was made in the Court of Appeal and the findings that were made are consistent with judgments of this Court.

A useful starting point in the UK authorities, if I might respectfully suggest, is the dicta of Lord Blackburn in Dalton v Angus which is reported in ‑ ‑ ‑

HAYNE J: Law report, it is (1881) 6 App Cas 740.

MR MILLER: Yes, and it is at 829 the particular passage, and I quote:

Ever since Quarman v. Burnett it has been considered settled law that one employing another is not liable for his collateral negligence –

and that term Justice Kirby raised this morning was the alternate to casual negligence, I think –

unless the relation of master and servant existed between them. So that a person employing a contractor to do work is not liable for the negligence of that contractor or his servants. On the other hand, 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. He may bargain with the contractor that he shall perform the duty and stipulate for an indemnity from him if it is not performed, but he cannot thereby relieve himself from liability to those injured by the failure to perform it -

and then there is the reference there to Pickard v Smith. We set out the other United Kingdom authorities on paragraphs 25, 26 and through to 30 and we say that there is no reason why, as a matter of general principle, those principles that are set out in those authorities should be set aside by this Court.

KIRBY J: It is not a matter of not setting them aside. It is a matter of whether they fit comfortably into the doctrine of negligence as this Court expounds it.

MR MILLER: Well, your Honour, it is our submission that they can.

KIRBY J: If I could see an analogy between the school and the school child, Introvigne, or the employer and the employee, Kondis, then I would be prepared to say, well, there is a concept and this is another example of the concept, but, as Mr Garling pointed out, the variety of pedestrians is infinite and, indeed, it is the whole of the community and, therefore, it is not a subclass like pupils or employees. It is everyone.

MR MILLER: We say in this particular case – and personally I do not like the concept of the phrase non‑delegable duty - but why there was a residual responsibility to be cast upon the Council was that it mandated the system, it retained the control, it had the capacity to carry out the work by reason of statute, it undertook work which is inherently dangerous in the circumstances, and the vulnerable class were those pedestrians who were likely to use the footpath under repair.

CALLINAN J: Why was it inherently dangerous work?

MR MILLER: It was inherently dangerous if the system that was laid down was to require carpet to be placed over what, in effect, was ground under repair, under a non‑finished footpath. They had to dig up the road base ‑ ‑ ‑

CALLINAN J: But that was not what caused the accident. It was the concealment by the carpet of something, an underlying danger that had been created.

MR MILLER: But the inevitable ‑ ‑ ‑

CALLINAN J: Unexpectedly, I would have thought.

MR MILLER: Well, your Honours, the finding of fact which was not challenged was that the pit lid was broken before the carpet was placed upon it and it was not suggested that the pit lid was not broken during the course of works. One only has to say that if a footpath is going to be dug up and there is a pit in the way, just ask the question, is it possible or reasonably foreseeable that whatever is in the way could get broken.

Equally, it could have been, it was not the case here, but when they dig up the footpath there are holes left, it is an uneven surface. The way to, and why we say, inherently dangerous or dangerous in the circumstances was that all that one had to do was put down a duckboard. I can but repeat myself, your Honours. We say the control and the capacity to control in the circumstances.

Paragraph 31 we refer to Brodie and that particular passage, it should not be an issue that a road authority, in this case the appellant, can come under a common law duty of care in relation to the exercise or failure to exercise powers or functions by statute. That was approved or followed by Justices Gummow and Hayne in Commissioner of Main Roads v Jones. We provided the Australian Law Journal Reports but we are told that the relevant authority here is the Australian Law Reports. I can give your Honours the particular passages if that is ‑ ‑ ‑

GLEESON CJ: Please yourself. We have media-neutral citations now, Mr Miller, so it is the paragraphs.

MR MILLER: You told me that last time, your Honour, and I have really grabbed onto that.

GLEESON CJ: It is the paragraphs that matter.

MR MILLER: Certainly. The media-neutral reference is at paragraph [39].

GLEESON CJ: Thank you. Mr Miller, this has already been raised with your opponent and the opportunity will be there for both of you to put in written submissions. I cannot help feeling that part of the explanation of this line of authority with which we are concerned may be that for a long time there was a view that liability in nuisance was a remedy for personal injury suffered by people on the highway and that references to highway authorities or road authorities not being able to escape their duty by delegating it to an independent contractor are, as Lord Justice Widgery suggested in the case that I mentioned earlier, bound up with this concept of actions for damages for nuisances being available to people who are on the highway and suffered personal injuries, liability that, I think, was said to exist regardless of negligence.

MR MILLER: I accept that, your Honour. We gave that reference at paragraph 25 in our submissions; it is at pages 340 to 343. At page 340, Lord Justice Lindley says:

The powers conferred by the Public Health Act, 1875, on the district council can only be exercised by some person or persons acting under their authority. Those persons may be servants of the council or they may not.

HAYNE J: When you come to the written submissions that you have leave to file you will no doubt take account of what is said in Brodie v Singleton in the joint reasons of Justices Gaudron, McHugh and Gummow between paragraphs 116 and 129 where their Honours treat at some length the relationship between nuisance and negligence and the place that nuisance had in connection with the maintenance of actions for personal injuries caused by an obstruction on the highway.

MR MILLER: As your Honour pleases. We certainly shall address that. Whilst we are on Brodie, can I take your Honours to page 577, paragraph 150 which was critical in the judgment of the trial judge and we say is apposite here:

F. Content and breach of the duty of care
The duty which arises under the common law of Australia may now be considered. Authorities having statutory powers of the nature of those conferred by the LG Act upon the present respondents to design or construct roads, or carry out works or repairs upon them, are obliged to take reasonable care that their exercise of or failure to exercise those powers does not create a foreseeable risk of harm to a class of persons (road users) which includes the plaintiff. Where the state of a roadway –

and we say for “roadway” read “footway” –

whether from design, construction, works or non‑repair, poses a risk to that class of persons, then, to discharge its duty of care, an authority with power to remedy the risk is obliged to take reasonable steps by the exercise of its powers within a reasonable time to address the risk. If the risk be unknown to the authority or latent and only discoverable by inspection, then to discharge its duty of care an authority having power to inspect is obliged to take reasonable steps to ascertain the existence of latent dangers which might reasonably be suspected to exist.

Also, across the page at page 578, paragraph 153, under “Construction and design”:

Issues may arise as to whether there was a foreseeable risk of harm arising from the design or the method of construction employed and whether, in choosing or performing the design and construction or in failing to take preventative measures or to put into place warning signs, the authority responsible failed to exercise reasonable care.

We have provided to your Honours a very recent decision in the New South Wales Court of Appeal in Coombes where there were two potentially liable road authorities. One was the Roads and Traffic Authority of New South Wales and the other was the Bombala Council. In that particular case it was held that the Roads and Traffic Authority, although it funded the road design and the construction occurred in accordance with its design, was not liable, that the road authority that was liable was the Bombala Council.

That case essentially was an application of the earlier judgment of the New South Wales Court of Appeal, in particular, the judgment of the Chief Justice to the facts of the particular case. So it is a very useful example, we say, of where a road authority potentially liable was in the circumstances of the particular case held not to be liable. The question was posed at paragraphs 118, pages 38 and following, “Did the RTA owe a duty of care?” Paragraph 120 is a reference to Palmer:

Spigelman CJ considered whether, in similar circumstances, the RTA owed a duty of care –

There is a reference then to Palmer. Now, the only point we raise it for, your Honour, is that we say it depends upon the particular circumstances of the particular case as to whether or not a road authority will be held to be under a non‑delegable duty and will be held to be liable. That depends upon control in the circumstances and whether or not the person affected falls within what we say are the vulnerable class of persons.

We submit, your Honour, that there is nothing in Kondis which is inconsistent with Brodie, nor with the decision of the New South Wales Court of Appeal in Scroop, Palmer, nor Coombes, and that Justice Spigelman’s judgment in Palmer identifies the ultimate issue to be one of control and that the inquiry that is made is, as was similarly an inquiry made in the Barclay Oysters Case, did the authority exercise control. They are all matters which can be determined on the facts of the particular case. So rather than as my learned friend puts it, we seek to expand the class of cases. We say to the contrary, my learned friend seeks to confine the class of cases.

KIRBY J: He does if you take the authority as the authority of the English courts or the Court of Appeal of New South Wales, but in this Court for the first time we are being asked to endorse the notion of another exceptional category of non‑delegable duty.

MR MILLER: We say that your Honours are not. We say that all that your Honours are being asked to have regard to is whether or not in the circumstances of this particular case it was appropriate for a council to be ‑ ‑ ‑

KIRBY J: Yes, but you have not been able to point to a case where this Court has said that council and pedestrian are in a relationship equivalent to employer/employee and school and teacher.

MR MILLER: No, we have not, your Honour, but the principles of negligence as held recently in this Court we submit provide in themselves sufficient flexibility depending upon the circumstances of the case to determine whether a road authority is or is not potentially liable. The concept of non‑delegable duty was originally confined to hospitals and to schools. As we point out in paragraph 48 of our submissions, there have been extensions of circumstances in which that can be held to be the case.

KIRBY J: Does the record show why your client settled with the contractor? I do not want to know anything that is not in the record.

MR MILLER: No, the record does not show that, your Honour. Suffice to say that there were offers of compromise made on behalf of the plaintiff towards the present appellant. They were beaten on both occasions, hence we received a special order of costs in this Court.

KIRBY J: You remember Justice Hayne asked at the very opening of the case what is the reason for this exceptional protection, and at least one possibility is because the law wants to make sure that people in these very particular relationships do not lose out if, for example, the contractor is not insured.

MR MILLER: Your Honour, all I can do is put it in a neutral fashion. There was no evidence concerning (a) whether there was any obligation to insure, nor (b), if there was, what the extent of cover might be. There was no evidence on that at all. We submit that if one attempts for policy reasons to approach it on that principle, as many as you will perhaps cover, you will leave as many out, for example.

KIRBY J: In the real world one would I think draw an inference that a contractor of a responsible council is going to be insured against public risk.

MR MILLER: I am tempted to respond by reference to a particular ABC documentary in that regard, your Honour.

KIRBY J: I take a careful point not to watch those sorts of documentaries.

CRENNAN J: It was part of the general principles though, was it not, in relation to the general specification for road works that a contractor must carry public liability insurance?

MR MILLER: I do not know whether it was in here but it was never a matter which was raised and the quantum of cover was never raised.

CRENNAN J: That statement of general principle referred to a minimum cover of $10 million.

MR MILLER: In here, does it, your Honour?

CRENNAN J: Yes, at appeal book 249, point 15.

MR MILLER: Thank you, your Honour. We respectfully submit that that should not be a factor which determines a matter of legal principle here because, whilst it may be a requirement, it does not mean to say it is going to be followed. It is not as if it is compulsory; it is a contractual requirement. There is nothing further I can add, your Honours.

GLEESON CJ: Thank you, Mr Miller. Yes, Mr Garling.

MR GARLING: If your Honours please. My learned friend just put –and it was perhaps left slightly unclear – that there was no disclosure of the fact of cover or the extent of it. The contract, as your Honour Justice Crennan noted, page 249, line 15, the specifications required that:

The contractor must carry Public Liability Insurance with a minimum cover of Ten Million Dollars ($10,000,000).

That was in the specific two‑page specifications relating to this work at page 249, which is one of the ‑ ‑ ‑

KIRBY J: That is the one with the carpet.

MR GARLING: It is one of the two places that those specifications appear and it is just five paragraphs above the note of carpet.

CALLINAN J: There is no suggestion that this was not binding on Roan or ‑ ‑ ‑

MR GARLING: No, this was the particular specifications for this particular job, consisting of the quote, provision of specifications and acceptance, and there was evidence that Roan - and indeed the judge found it to be so – Roan was the usual contractor used by the Council for a range of work.

Your Honours, may we say this about Coombes, which is the decision to which my learned friend just took the Court, which is a decision delivered a couple of weeks ago by the New South Wales Court of Appeal. Coombes is in fact a very good example of an allegation of what has been called in this Court a direct duty of care against a road authority and a failure to establish that on the facts. The facts are set out on the third page in the headnote sufficiently for present purposes, then I will take your Honours to two paragraphs where it says in the second paragraph:

The appellant brought proceedings against each of the respondents alleging negligence against the first and second respondents –

they were the two road authorities –

due to inadequate traffic control measures at the detour including the absence of a barricade for traffic travelling north, and against –

the other car for going too fast. At paragraph 127 the following appears in speaking of the RTA:

Accordingly, if there was negligence in failing to have a two‑way sign –

there was a narrow detour, your Honours, it was a two-way detour. That was not readily apparent to vehicles using it, particularly at night. On the detour there was a head‑on collision. The question was: in part was the road authority liable? The court says:

if there was negligence in failing to have a two-way sign, it was negligence that arose during the course of the construction work and was not related to the original design of TCP 13 –

that is the traffic control plan –

that was approved by the RTA.

So it had a traffic control plan submitted to it for approval and it did so. Then at 128 I think it is Justice Beazley says:

In my opinion, the evidence did not establish that there was any inadequacy in the design of TCP 13 at the time of its approval. Nor was the RTA responsible for checking compliance with it, or initiating changes as the work progressed. It follows that the RTA did not owe any duty of care to the appellant.

In other words, what was sought to be established was the opposite of a non‑delegable duty of care; rather, that there was conduct on the part of the RTA which was negligent. What the court did was to say that the facts did not support the allegation. It was not relevant and the concept of non‑delegable duty did not raise its head in that case.

GLEESON CJ: A problem with using vulnerability as the explanation of the existence of a non‑delegable duty where one exists may be that you would not be a plaintiff in a personal injuries case unless you were vulnerable.

MR GARLING: Yes, to simply use vulnerability does not limit a class of people who might sue, and if one is simply owing a duty to the world at large it is hard to define vulnerability, but if one as an example is to pick school children in a particular environment, they are clearly a vulnerable class.

GLEESON CJ: Yes, a class of special vulnerability.

MR GARLING: Special vulnerability ‑ ‑ ‑

GLEESON CJ: Unusual vulnerability.

MR GARLING: With features that one can identify – age, impetuosity, youth, immaturity, et cetera.

KIRBY J: Yes, but can I say the problem I have? It is this. If you look at Kondis - admittedly it was written in 1984 - the first six pages of Justice Mason’s opinion are absolutely full of English cases. He is building on English principles of tort liability and he has cited about 20 of them or so. Now, that is really what the Court of Appeal of New South Wales did in the non‑delegable duty of local authorities. They built on a series of English cases and effectively you are trying to say to us, Kondis was accepted, admittedly on that premise, and one could say the same perhaps about Introvigne; I do not know.

Here you are trying to cut back on what is established by a line of English authority which has been followed in Australia where it has been put to the test. It has never come to this Court. But why would we not do the same thing as Justice Mason did in those pages, just lay out the English cases and say this is a well‑established principle and we will just give effect to it.

MR GARLING: The first thing to say is that many of those older English cases are not strictly or simply road authority cases. They refer in various circumstances more broadly to the notion of a non-delegable duty. The ones that Justice Mason directly refers to, if I am not mistaken, do not include any road authority cases. He is referring to employer/employee cases ‑ ‑ ‑

KIRBY J: That was the problem in hand, but the technique was the one which we are invited to take in this Court in this case.

MR GARLING: My first point, your Honour, is that you are not doing any offence to the support that Justice Mason obtained from those authorities in Kondis by saying we are in this case considering a different allegation of a non-delegable duty. It would be adequate to say that there are some cases in which a non-delegable duty would be permissible and start with Kondis; that would not do any offence to that line of authorities.

The second question then becomes whether there are some other authorities, principally those referred to in Scroop and following by the New South Wales Court of Appeal, which provide a result which is coherent or consistent with the way in which this Court now views negligence. As to that, we say, and may I put it almost in bullet‑point form if I might, your Honour: (1), no case here yet adopting that; (2) reluctance to advance the categories or increments by which such a special duty would be embraced; (3) no identification of principle which would mandate such a result; (4) such a result would be inequitable because it would constitute the road authority and insurer for everyone’s safety.

GLEESON CJ: You say, five, sauce for the goose is sauce for the gander, and if the law of negligence cut itself free from nuisance in Brodie by removing from highway authorities a form of immunity that had its origin in nuisance, they also ought to remove from highway authorities a form of stricter liability that had its origin in nuisance.

MR GARLING: Yes, your Honour, we embrace that well‑known principle of law, competing sources, but particularly so, your Honour – may I not cause offence by that remark, I do not intend to – we embrace the proposition of what is in the broader sense the need to impose the obligation on a road authority and we submit that ‑ ‑ ‑

KIRBY J: There you have a bit of a problem. You remember the knife and the napkin at the beginning of the case, that it is you who have the power and you alone, in a sense, under the statute, that Parliament have given you and you exercise that power through a contractor, it is true, but it is you who has the power. No one else can do it.

MR GARLING: No one else can do it without our consent or our approval. We have the power to do it and because we are the road authority with care, control and management, if someone else, leave aside statutory exceptions for utilities, wants to do it they have to get our permission to do so. Classic example is homeowners opening up the kerb for driveways as an example. It would be surprising to take that as an example if we were liable for what happened there.

KIRBY J: Why could you not have sought indemnity or contribution from the contractor?

MR GARLING: As a matter of principle, no reason at all, your Honour. As a matter of contractual terms, no reason at all. But equally, the question is, why would the law, as a matter of principle, create a second layer of responsibility ‑ ‑ ‑

KIRBY J: Answer, because the Parliament has put the obligation on you and you alone can do it and this is the way that this will make sure you only use very reliable and safe contractors.

MR GARLING: And to take your Honour’s notional answer further, it would mean increasing our expenditure to employ people to double check on even competent contractors because the proposition which arises in non‑delegable duties, it is not sufficient that you have employed a competent independent contractor skilled in the area, you must do something more and ensure that that person who is charging you a market price for their services performs their contract on a day‑by‑day, maybe even shorter, basis.

That is to impose not just a layer of liability for an injured plaintiff but it is to impose a costly obligation on an authority. That is contrary to what in one sense one would expect which is that you would actually hope that a public authority which was to undertake work, now whether it be road work or building a jetty or whatever it may be, identified and retained a competent expert contractor to do it – with the skill to do it, because that is not only preferable, it is economically efficient.

CALLINAN J: Mr Garling, at page 283 of Buckle Justice Dixon said:

But when it does so –

and that means when it does road works –

the road authority is liable, not, I think, under any special measure of duty which belongs to it, but upon ordinary principles.

I know that part of what his Honour said was disapproved, expressly, in Brodie but there is no reference to that and his Honour there is dealing with the sort of situation that existed here of what would be misfeasance if it were done by the ‑ ‑ ‑

MR GARLING: Yes. The notion of a non‑delegable duty, we would add, is the notion of a higher duty, a duty to insure.

CALLINAN J: It is not a matter of ordinary principle and non‑delegable duty would be a special measure of duty.

MR GARLING: Yes, that is so, your Honour. Your Honours, that is the way in which we would put our response on the non‑delegable case. May we trouble the Court for a couple of minutes ‑ ‑ ‑

HAYNE J: Just before you come to that point, one matter of detail just to put it aside, no question at trial was agitated about what consequence followed for the Council’s liability from the fact of compromise with the ‑ ‑ ‑

MR GARLING: No, save and except a credit of the relevant sum was allowed against what would otherwise have been the full measure of damages.

HAYNE J: Judgment went for what, 247, or something?

MR GARLING: Yes, and that took it – what happened ‑ ‑ ‑

HAYNE J: That took account of 50?

MR GARLING: That took account of 50 less a notional adjustment for costs because the settlement of 50 was inclusive. The parties agreed on a notional sum of costs which I think was $15,000, so the sum of $35,000 was deducted from such sum as was otherwise assessed, but there was no argument of the kind that your Honour has in mind.

CALLINAN J: At page 332 the trial judge makes allowance for the 50 ‑ ‑ ‑

MR GARLING: Yes, has in mind about the discharge of one tortfeasor, et cetera, or nothing of that kind was dealt with at all.

HAYNE J: And thus the proceeding went on the basis that any liability was several?

MR GARLING: Yes. Your Honours, I just wanted to tax the Court for a couple of moments if I might about the sequence of whether or not there was another case run at trial, and I do so in support of this proposition that this Court would not grant leave to my learned friend to file the notice of contention in this Court.

Your Honours, I have to go backwards – which is not always appropriate, but if I might just have your Honours look at pages 426 and 427 of the appeal book which is where the notice of contention in this Court is set out and leave is sought to file it.

HAYNE J: There was a notice of contention below.

MR GARLING: Yes, and I want to compare the two, your Honour, to show that this notice of contention ‑ ‑ ‑

HAYNE J: The notice of contention below has never been passed on because the Court of Appeal never had to.

MR GARLING: Correct.

HAYNE J: Whether it was open has never been passed on by the Court of Appeal because it did not have to.

MR GARLING: Correct.

HAYNE J: With or without a notice of contention in this Court, would not the appeal have to go back to the Court of Appeal to deal with the notice of contention that was alive before it?

MR GARLING: No, for this reason. Unless this Court was satisfied that the notice of contention was properly before the Court of Appeal subject of argument, and recognised as such by the Court, and the Court expressly refrained from determining it, it would not be appropriate to send it back for rehearing. Your Honours, may I make the points, I hope, briefly. There are four bases in the notice of contention in this Court: failure to deny access, my learned friend accepts that was never put at trial; secondly, (b) a failure to supervise the works in that no proper system of inspection was mandated to the contractor. The words “was mandated to the contractor” did not appear in the notice of contention in the Court of Appeal and as your Honours have seen from the cross-examination of Mr Fitzpatrick‑Barr, no suggestion was ever put to him at all about the content of specifications of the kind that suggested that there ought to have been a mandate to the contractor. Thirdly, the proposition failing to properly and adequately supervise the activities of the contractor of itself does not appear in the Court of Appeal notice of contention.

KIRBY J: Some of those questions we were read get very close to that point.

MR GARLING: There is no question that my learned friend established that no inspection took place while the workers were there except on one occasion.

KIRBY J: Yes, but why was he asking these points if the only liability he was pursuing was liability for the casual act of negligence of the contractor through the principle of non‑delegable duty?

MR GARLING: Well, there might be two reasons why one would do so. He might want to eliminate a suggestion that the statement of fact that the state of facts was known and was drawn to the contractor’s attention in a specific direction was given to the contractor to take account of it. In other words, he may equally want to establish the negative as opposed to that the negative constituted a failure to take reasonable care. Then lastly, the question of duckboards, your Honours, page 418 and 419 is the notice of contention in the Court of Appeal. I was perhaps charitable in the Court of Appeal to permit it to be described as a notice of contention on a charitable construction.

Your Honours, there is just no ground here which identifies an issue of fact that was before the trial judge which would provide a ground for upholding the trial judge’s decision. The closest is paragraphs 14 and 15, system of inspection where it is submitted – paragraph 15 – the appellant through its engineer should have inspected all areas. That is different from that which is sought to be done here, mandate it to a contractor.

KIRBY J: Yes, but Justice Hayne’s point still remains true. These are arguments that have never been passed on by the Court of Appeal, so these are arguments that we would not normally get ourselves involved in, so long as you are content that there is something that the plaintiff has sought to preserve, and he has sought to preserve something in the notice of contention in the Court of Appeal.

MR GARLING: We would submit that at page AB 380 what the Court of Appeal did not do – your Honours remember by the time this notice of contention arose in the Court of Appeal two things. At page 379 of the appeal book my learned friend at line 36 says immediately after a comment from Justice Hodgson directed to non‑delegable duty:

There was one other matter; I forgot to ask at the time whether we could have leave to rely upon our notice of contention.

That was, he accepts, late, and at page 380, line 7 the President said:

Mr Garling, do you have a position as to the late filing of the contention?
GARLING: I can’t point to any prejudice arising by reason of late filing. However, our submission is the Court would not permit the notice of contention in this form to be filed –

and there is a discussion about that. Then at line 36 the President says:

If it covers the ground of the trial judge you don’t object to us treating it as a submission in support?

I said, no, I did not object to it being dealt with as a submission.

KIRBY J: But it really does not cover the point of the trial judge because the trial judge dealt with the case on the non‑delegable duty ‑ ‑ ‑

MR GARLING: Hence there was no ‑ ‑ ‑

KIRBY J: But that leaves outstanding whether the court should have granted leave.

MR GARLING: And my point is the court does not anywhere here articulate its reception other than where we do not object to it treating it as a submission.

KIRBY J: Yes, but do you deny that it was filed in the Court of Appeal? It seems to have a stamp.

MR GARLING: No, of course it was filed in the sense that it was handed up to the court and the court was looking at it and there was a question as to whether or not it was to be considered. The court did not go on to consider it. Now, in those circumstances, your Honour, we submit that ‑ ‑ ‑

KIRBY J: This is not like you, Mr Garling, to be taking us – we have been looking at the great sweep of the law of negligence and here we are down here with this notice of contention.

MR GARLING: The time has come to put an end to this case, your Honour. Sending it back for a further hearing would be, we would submit, unfortunate. May it please the Court.

GLEESON CJ: Thank you, Mr Garling. We will reserve our decision in this matter and we will adjourn until 10.00 am tomorrow.

AT 3.45 PM THE MATTER WAS ADJOURNED

[2006] HCATrans 462

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