Leichhardt Municipal Council v Montgomery

In *Leichhardt Municipal Council v Montgomery*, the High Court of Australia considered an appeal by Leichhardt Municipal Council from a decision of the New South Wales Court of Appeal. The case concerned a road user who suffered injury after falling into a telecommunications pit with a broken cover, which had been negligently covered by a carpet by employees of an independent contractor, Roan Constructions Pty Limited. Roan had been engaged by the Council to perform work on the footpath. The injured party had settled a claim against Roan but proceeded with a claim against the Council, alleging both the Council's own negligence and a non-delegable duty of care owed by the Council for the negligent acts of its contractor. The primary judge found the Council liable on the basis of a non-delegable duty of care.

The central legal issue before the High Court was whether a roads authority owes a non-delegable duty of care to road users for the negligent performance of work on public roads by an independent contractor, particularly in light of the High Court's decision in *Brodie v Singleton Shire Council* (2005) 206 CLR 512. The Court was required to determine if the relationship between a roads authority and a member of the public using a public road, or the statutory scheme governing roads authorities, evinced an intention that such a non-delegable duty should exist, or if such a duty was inconsistent with the statutory framework or the general common law rule regarding the liability of a party for the negligence of an independent contractor.

The High Court allowed the appeal, setting aside the orders of the Court of Appeal that had dismissed the Council's appeal to that court. The Court reasoned that the liability of a roads authority to road users does not fit within the established categories of relationships that attract a non-delegable duty of care at common law. The Court found that the common features of relationships giving rise to non-delegable duties were not present in the relationship between the Council and the injured road user in this instance. The matter was remitted to the Court of Appeal for further hearing.