Leichhardt Municipal Council v Montgomery

[2006] HCATrans 244

[2006] HCATrans 244

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S5 of 2006

B e t w e e n -

LEICHHARDT MUNICIPAL COUNCIL

Applicant

and

LESLIE MONTGOMERY

Respondent

Application for special leave to appeal

GLEESON CJ
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 19 MAY 2006, AT 10.51 AM

Copyright in the High Court of Australia

MR P.R. GARLING, SC:   If the Court pleases, I appear with my learned friend, MR R.S. SHELDON, for the applicant.  (instructed by Phillips Fox)

MR G.T.W. MILLER, QC:   May it please your Honours, I appear with my learned friends, MR A.R. REOCH and MS A.A. GOMEZ, for the respondent.  (instructed Teakle Ormsby Conn)

GLEESON CJ:   Yes, Mr Garling.

MR GARLING:   If the Court pleases.  This is a case in which a road authority, the Council, was found liable on the basis that it owed to a pedestrian, the plaintiff, a non‑delegable duty of care and was in breach of that.

GLEESON CJ:   Mr Garling, can I ask you a matter of fact?

MR GARLING:   Yes, your Honour.

GLEESON CJ:   I know that there was some evidence in the case about the extent to which the Council, as it were, supervised this activity.  Was there any finding either at first instance or in the Court of Appeal of negligence on the part of the Council or any officer of the Council?

MR GARLING:   No, your Honour.  The finding in the Court of Appeal is to be found at 47 of the application book in paragraph 19, line 45.  The issue covered at this point is whether there was a complete hole at the time the carpet was placed or perhaps a defective cover that collapsed when the plaintiff walked on it.  At line 45 Justice Hodgson says:

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

That is the finding of negligence, your Honour.

GLEESON CJ:   The only finding of negligence was the finding of negligence on the part of the employee of?

MR GARLING:   Roan Constructions, the contractor.

GLEESON CJ:   The contractor.  By the way, there was a judgment against the contractor, was there not?

MR GARLING:   There was, yes, a judgment consequent upon an agreement to settle at arbitration or shortly after the arbitration of the proceedings in the District Court.

CALLINAN J:   What was done about the damages?  It was $50,000, was it not, settlement?  It was something like that.

MR GARLING:   It was taken into account by the trial judge and, in effect, credit was given to the Council for that sum. 

GLEESON CJ:   So the judgment against the Council was for the balance?

MR GARLING:   Yes.

GLEESON CJ:   At all events, there was no finding of fault on behalf of the Council or any employee of the Council?

MR GARLING:   No, although there was evidence, as your Honour correctly drew my attention to, that from time to time a Council officer went there, but that was, he said, on only one occasion when work was being done and it was generally to see, in terms of monetary payments and the like, what the progress of the work was and to deal with shopkeepers whose lives were disrupted by this work taking place.

CALLINAN J:   But there was no denial of access by the Council, was there? 

MR GARLING:   No.

CALLINAN J:   The Council never erected barriers or did anything ‑ ‑ ‑

MR GARLING:   No, the Council did absolutely nothing with respect to the work that was taking place by way of physical involvement.

CALLINAN J:   Was the contract before the court as to the contractor’s obligations to ‑ ‑ ‑

MR GARLING:   Yes.

CALLINAN J:   Is that in here?

MR GARLING:   No, the contract was before the court.  There are some parts of it which are referred to in the trial judge’s judgment.  At the bottom of 12 and the top of 13 of the application book, your Honours, her Honour summarises the specifications by saying at line 55 on page 12:

The original specifications provided for a number of matters, including that hours of work –

and they could be varied.  At line 22:

The specifications provided that the contractor was to arrange with the RTA for the acquisition of the inside lane –

That was in order to give pedestrians a passage along the otherwise usual parking lane on Parramatta Road.  Then at about line 45 in reference to the officer of the Council her Honour records:

He also directed Roan Constructions to carry out the work in 30 to 40 metre lengths to keep excavation to a minimum so that works could be closed up after completion and the next stage moved to.  Mr Fitzpatrick‑Barr said he did not otherwise direct Roan Constructions how to carry out the actual excavation and resurfacing of the footpath. 

CALLINAN J:   But there is no evidence that the Council ever relinquished control or occupation of the place where the work was being carried out?

MR GARLING:   No, it has that control statutorily, your Honour, so it cannot ‑ ‑ ‑

CALLINAN J:   It never did anything itself to deny access?

MR GARLING:   No.

CALLINAN J:   Why would that not support a finding of negligence?

MR GARLING:   It may have, your Honour, but the case was not put that way at trial and not run that way and there is no finding of negligence.  The case at trial was put, as her Honour records at page 3, line 16, at trial:

Plaintiff’s counsel, Mr Miller QC who appeared with Mr See, submitted that the council owed to the plaintiff a non delegable duty of care, notwithstanding the fact that the footpath reconstruction works, which were being carried out at the time of the plaintiff’s accident, were being carried out by a contractor, the second defendant in the original proceedings, Roan Constructions Pty Ltd.

GLEESON CJ:   Does that mean that the case was conducted and decided on the basis that as long as there was shown to be negligence on the part of an employee of the contractor the Council was liable to the plaintiff?

MR GARLING:   Thereby liable because of its status as a road authority and the duty which it owed to all road users.

CALLINAN J:   In reliance on a number of cases in the Court of Appeal here, is that right?

MR GARLING:   Yes.

CALLINAN J:   And Justice Hodgson so found, did he not, in terms that there was a non‑delegable duty of care placed entirely upon New South Wales Court of Appeal authority, is that right?

MR GARLING:   Yes, your Honour, and I can tell your Honour that our recent checking of that line of authorities does not reveal that it has been adopted in any other State in Australia.

CALLINAN J:   Where does it come from?

MR GARLING:   It came from a judgment of Justice Fitzgerald some years ago which is the case of RTA v Scroop which is mentioned in the decision.

CALLINAN J:   It is rather like that case that came from Queensland that some doubt has been cast on about the non‑delegable duty owed by a householder of the electricity.  What was the name of ‑ ‑ ‑

MR GARLING:   Northern Sandblasting.

CALLINAN J:   Northern Sandblasting, which has subsequently been, at least, very much doubted in this Court.

MR GARLING:   Yes.  The source though ‑ ‑ ‑

CALLINAN J:   Justice Fitzgerald I think sat on that Court of Appeal in Queensland.

MR GARLING:   Yes, your Honour, and what has happened in the Court of Appeal in New South Wales, starting with Scroop, there has been I think four or five cases which have turned entirely on this question of non‑delegable duty.  Now, your Honours, we simply submit it goes so far beyond Brodie.  What this Court found in Brodie is to be obviously wrong and a point of importance.

CALLINAN J:   It is really not consistent, is it, with what has been said now about occupier’s liability generally at common law that they are not special categories, it is just reasonable care is owed and you look at the facts of each case.

MR GARLING:   That is right.  There was no suggestion in this case, for example, that the construction company, Roan Constructions, was an incompetent contractor or did not have the expertise or ability to carry out the work.  So that that issue which may otherwise arise in some factual circumstances did not arise here.  Your Honours, we put to the court below that Scroop was neither correct and ought not be followed.

GLEESON CJ:   Mr Garling, again a small matter of fact.  I see that Mr Fitzpatrick‑Barr was the Council officer and he was a witness.

MR GARLING:   Yes.

GLEESON CJ:   Did anybody put to Mr Fitzpatrick‑Barr that he did anything wrong?

MR GARLING:   Your Honour, I am afraid my recollection of the transcript in the Court of Appeal does not permit me to answer that question.  May I apologise for that.

GLEESON CJ:   I just wondered whether it was put to Mr Fitzpatrick‑Barr that he personally was at fault in any way.

MR GARLING:   Yes, I cannot recall that, your Honour, and I am afraid I do not have that transcript with me in Court.

GLEESON CJ:   We might be assisted by hearing from Mr Miller at this stage.

MR GARLING:   If the Court pleases.

GLEESON CJ:   Yes, Mr Miller.

MR MILLER:   Thank you, your Honours.  Your Honours, we seek the Court’s leave, and we believe that the documents have been forwarded to the Court by the Registry, to rely upon a document we have entitled “Summary in Response to Applicant’s Reply”.  The reply contended that, in our submission, we had made misstatements.  Does your Honour have those documents?

GLEESON CJ:   Yes, “Summary in Response to Applicant’s Reply”.  It is accompanying a memorandum of 16 May.

MR MILLER:   Perhaps it is a convenient way of addressing the matter that your Honour the Chief Justice just raised with me, but before I do that, could I address a couple of other matters that my learned friend said.  He said at trial it was not suggested by the plaintiff that Roan Constructions was incompetent.  What occurred at trial was that the Council attempted to lead evidence as to the competence of Roan Constructions.  That was objected to and was rejected because it had not been particularised as being in any way a relevant matter that the defendant Council relied upon, so that there was no finding relevantly for the purposes of, if one comes to look at non‑delegable duty, that the Council as the road authority under section 7 of the Roads Act had delegated its responsibility.

In relation to Mr Fitzpatrick‑Barr, your Honour asked my learned friend was it put to Mr Fitzpatrick‑Barr that he had done something wrong.  The terms in which it was put to Mr Fitzpatrick‑Barr was – and he had been the Council’s engineer primarily responsible for drawing the specifications and letting the contract – it was put to him that he must have been aware that simply placing either synthetic grass or carpet over a footpath under construction or repair itself would lead to a danger to any person walking upon that, particularly, as was the case here, at night, and that he must have been aware that there was no warning provided by Council of that potential danger and there were a number of other factors. 

CALLINAN J:   That may be so, but was the case conducted on the basis that it was a non‑delegable duty of care?

MR MILLER:   It was conducted on that and it was also, and certainly in the Court of Appeal, argued on the basis that the Council itself was independently negligent.

GLEESON CJ:   What did the Court of Appeal find about that?

MR MILLER:   They found, in effect, your Honours, that the system which was put in place by the Council, which as an authority retained control, was itself inherently dangerous.

GLEESON CJ:   Did they make a finding of negligence against the Council or any officer or employee of the Council?

MR MILLER:   By saying in the terms we find negligence, no, your Honour, as far as I can read it.  However, if your Honours ‑ ‑ ‑

CALLINAN J:   If you look at paragraph 28 on page 50, it is Justice Hodgson’s judgment, is it not?

MR MILLER:   Yes, your Honour.

CALLINAN J:   His Honour says:

In my opinion, the principle I have referred to was engaged, so the Council is liable for the negligence of Roan.

MR MILLER:   Yes, I am sorry.

CALLINAN J:   Well, that is not a finding of negligence ‑ ‑ ‑

MR MILLER:   Not in the terms that was put by the Chief Justice.

CALLINAN J:   ‑ ‑ ‑ and the whole, I would have thought, of Justice Hodgson’s conclusion relevantly depends upon the application of those New South Wales cases holding that the duty of care is non‑delegable.  That is the heading on page 48.

MR MILLER:   It has a heading, however ‑ ‑ ‑

CALLINAN J:   What were you allegations of negligence against the Council on the pleadings?  Were there any?

MR MILLER:   I do not have those here, your Honour.  I cannot assist in that regard.

GLEESON CJ:   What is going through my mind is this, Mr Miller.  It may be that if we were to grant special leave in this matter and Mr Garling were to succeed, you might have an argument for saying the matter ought to go back to the Court of Appeal to make a decision about whether the Council was negligent.  But as far as I can see at the moment, neither at first instance nor in the Court of Appeal, was there any finding of fault on the part of either the Council or any officer or employee of the Council.  But if that is wrong, this would be a good time to point it out.

MR MILLER:   Yes, if I may.  Can I take your Honour to our summary that – took earlier, because what we had put in relation to the practice that was imposed which we say a process which the Council had capacity to control and thereby owed a duty of care was that the project manager, and that is Mr Fitzpatrick‑Barr, visited the site two to three times a week to ensure that the work was being carried out in accordance with the specifications.

CALLINAN J:   All of that may be accepted.  I have read the memorandum now.  But that is not the finding in the Court of Appeal.  The Court of Appeal does not find that the Council engineer was negligent; the Court of Appeal finds there was a non‑delegable duty of care and that Roan was negligent and it was that negligence for which the Council was responsible.  We do not even know, because we have not seen the pleadings, whether there was any allegation of negligence and what the particulars were.

MR MILLER:   No, and I cannot assist your Honour presently on that.  But we say that contrary to the submissions of our learned friends, what was decided in the Court of Appeal and to the extent that Scroop was relied upon is entirely consistent with Brodie, with Palmer and with other decisions of this Court. 

CALLINAN J:   Has the effect of Brodie been perhaps not nullified, but significantly altered by reason of legislation in New South Wales?  Perhaps it does not apply to this case.

MR MILLER:   Not that I am aware of, your Honour.  I think Brodie at the moment is being debated actually today, part‑heard from Tuesday or Wednesday, in the New South Wales Court of Appeal in a matter in which the question is, which road authority, either the Roads and Transport Authority or a council – and I think it is Bermagui Council – was responsible for the actual roadway in question and to the extent there, was there any residual non‑delegable duty of care in the RTA.

CALLINAN J:   I had the idea, and I may be quite wrong about this, that there has been some legislative restoration in ‑ ‑ ‑

MR MILLER:   Well, my learned friend is nodding.  I do not know of it.

CALLINAN J:   But it may not apply to this case.  Mr Garling says it does not.

MR GARLING:   Section 45 of the Civil Liability Act has a limited restoration of road immunity.

CALLINAN J:   Fairly significant restoration though.

MR GARLING:   Yes, but that did not apply here.

CALLINAN J:   Thank you.

MR MILLER:   Could I answer the question of the pleadings, your Honour.  We have a copy of the red appeal book in the Court of Appeal. 

CALLINAN J:   Where is it, Mr Miller?

MR MILLER:   Your Honour, I am reminded it is paragraph 2 of the application book here.  In the judgment of the trial judge the plaintiff in his statement of claim made an allegation of negligence against both defendants in identical terms.  They are set out in paragraph 10 of the amended statement of claim.  Relevantly here we would say the particulars were (a), (c), (d), (e), (g), (h), (i), (j), (k) and (l).  Before the Court of Appeal we argued that the system that was adopted by the Council or mandated by the Council itself was inherently unsafe.

GLEESON CJ:   And there was no decision on that?

MR MILLER:   We say there is a decision on it when one has regard to the judgment in totality.  It was not said in terms as such.

CALLINAN J:   Mr Miller, if you look at page 3, although those particulars of negligence are pleaded:

Plaintiff’s counsel, Mr Miller QC . . . submitted that the council owed to the plaintiff a non delegable duty of care –

So Mr Garling seems to be right that it is the basis upon which the case was conducted.

MR MILLER:   I am not resiling from that but the case that was argued – and I am sorry, I just cannot remember today – but I certainly recall articulating before her Honour and certainly before the Court of Appeal that the system that was mandated by the Council was inherently dangerous, that there were any number of alternatives available, for example, putting down hard boards upon which pedestrians could walk, not soft carpet, which one would have thought was what commonsense required.  I cannot take it further than that and cannot – if your Honours say, as – the highest we could put is that passage at paragraph 28.

However, what we do say is that paragraphs 20 to 28 must be read in their entirety but there is nothing inconsistent with the decision of this Court in Brodie with what was found in Scroop, nor is there any inconsistency between Palmer and Scroop.  Indeed, Brodie refers to Scroop.

GLEESON CJ:   You may be entirely correct ultimately, Mr Miller.  It may be that as a matter of principle all the plaintiff has to do to succeed against a council in a case like this is show negligence on the part of the contractor, but whether or not that is so is a fairly important question, is it not?

MR MILLER:   That is true.  Our position shortly is that ultimately the question is one of control.  It is the control that creates the duty and in this particular case to a person who was part of a vulnerable section of the community, namely pedestrians walking at night upon this footpath, and that that gives rise to the non‑delegable duty.

CALLINAN J:   Councils have a lot of non-statutory powers that a contractor does not have to erect barricades and do various things to ensure safety.

MR MILLER:   Certainly, and one would have thought even warning signs or even checking it before carpet went down.  It is almost like catching the Bengal tiger in Malaysia.  You dig a pit and put a carpet over the top.  That was really what in effect happened here.

CALLINAN J:   It would have been a hidden trap in the old days.

MR MILLER:   Yes.  This was approaching it.  Can I take your Honours to the passage in Brodie where it is suggested, as I understand it, that there is an inconsistency between the decision in Brodie and Scroop. At paragraph 128 – and I understood that the authority that is given the Court here is the motor vehicle reports, so I will give that as well: (1998) 28 MVR 233 at 238. At page 570 of those reports which considers paragraph 128 if one is looking at the other reports, Justices Gaudron, McHugh and Gummow in their judgment state:

In other cases, it apparently has been assumed that, for some good reason, the “immunity” does not apply, and the litigation has been determined upon application of the general principles of negligence.

The examples appear to be Hodgson v Cardwell Shire Council, Roads and Traffic Authority v Scroop.

CALLINAN J:   I cannot pick that up.  Did you say paragraph 128?

MR MILLER:   Yes.  Does your Honour have ‑ ‑ ‑

CALLINAN J:   I have the Commonwealth Law Reports.

GLEESON CJ:   Give the paragraph number.  That is why we have media‑neutral citations.

MR MILLER:   In the Commonwealth Law Reports at page 570 at paragraph 128, the last sentence, and (285) is the footnote:

Examples appear to be Hodgson v Cardwell Shire Council . . . Roads and Traffic Authority (NSW) v Scroop ‑ ‑ ‑

CALLINAN J:   But the sentence, although certainly the footnote refers to Scroop, refers to the “general principles of negligence”.  Scroop seems to go a lot further than that, does it not?  It erects a special rule of non‑delegability.

MR MILLER:   Having regard to the circumstances of its particular case, Scroop does.  There is nothing inconsistent with Scroop, we say, and the decision of this Court in Brodie nor inconsistent with the judgment of the New South Wales Court of Appeal in Palmer.  Palmer is entirely reconcilable with Scroop.

CALLINAN J:   In what other areas of negligence now is there a non‑delegable duty of care?  Is there any left?

GLEESON CJ:   School authorities ‑ ‑ ‑

MR MILLER:   Yes, all those special relationships.  This is not a case, we say, which is appropriate for revisiting the class of entities or parties that should fall within that proscription of non‑delegable duty because of the facts of the particular case present.  The road authority in this case, the Council, retained the control and it in addition predicated the manner in which the repairs should occur, which was systemically deficient and which led causally to the injury.  It may well be interesting, with respect, to revisit the classification or class of entities upon which non‑delegable duties…..should be cast, but this is not the vehicle for that.

If your Honours are against us in that, we also sent as an authority on the question of costs what has been referred to by Justice Gaudron as the well‑settled principle here of costs being awarded.  As we put in our submissions, your Honours, both in trial and on appeal, the respondent…..his offer of compromise and if there is a matter of interest it is of interest to the Council.  Thank you, your Honours.

GLEESON CJ:   Thank you, Mr Miller.  Mr Garling, what do you say about that question of costs?

MR GARLING:   I think what my friend is actually putting is that leave would only be granted on the basis that we ‑ ‑ ‑

GLEESON CJ:   That you undertake not to disturb the orders for costs made in the ‑ ‑ ‑

MR GARLING:   Costs below and that we pay the costs of the appeal.  Your Honour, I do not have specific instructions.  May I just say this.  That is not always a basis just because a point is of general importance.  The fact that leave is granted demonstrates that the point is, broadly speaking, of general importance and this is an attack directly in the way in which the plaintiff pleaded its case at trial.  The matter has been in issue from the moment of the trial onwards and the ordinary costs rule ought apply.  If the Court pleases.

GLEESON CJ:   In this matter there will be a grant of special leave to appeal on condition that the appellant undertakes to pay the costs of the appeal in any event and not to disturb the orders for costs made in the courts below.  We understand that Mr Garling is not presently in a position to give that undertaking but it will be necessary for the undertaking to be notified to the Registrar if the applicant wishes to take advantage of the special leave to appeal that was granted.

MR GARLING:   If the Court pleases.

GLEESON CJ:   We assume that the case will take one day, that counsel will agree on the division of time between them and that the record will disclose the way in which the case was conducted at first instance and in the Court of Appeal.

MR GARLING:   If the Court pleases.

AT 11.23 AM THE MATTER WAS CONCLUDED