Roads and Traffic Authority v Scroop

[1999] HCATrans 325

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S155 of 1998

B e t w e e n -

ROADS AND TRAFFIC AUTHORITY

Applicant

and

CAROL EDITHA SCROOP

First Respondent

DUKIN HOLDINGS PTY LTD

Second Respondent

RAYMOND FREDERICK SCROOP

Third Respondent

BITUPAVE LIMITED t/as BORAL ASPHALT

Fourth Respondent

Office of the Registry
  Sydney  No S156 of 1998

B e t w e e n –

ROADS AND TRAFFIC AUTHORITY

Applicant

and

RAYMOND FREDERICK SCROOP

First Respondent

BITUPAVE LIMITED t/as BORAL ASPHALT

Second Respondent

Office of the Registry
  Sydney  No S157 of 1998

B e t w e e n –

ROADS AND TRAFFIC AUTHORITY

Applicant

and

CAROL EDITHA SCROOP

First Respondent

BITUPAVE LIMITED t/as BORAL ASPHALT

Second Respondent

RAYMOND FREDERICK SCROOP

Third Respondent

Applications for special leave to appeal

GAUDRON J
KIRBY J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 8 OCTOBER 1999, AT 10.15 AM

Copyright in the High Court of Australia

_____________________

MR B.H.K. DONOVAN, QC:   May it please the Court, I appear for the applicant in each of the matters with MR T.H. BARRETT.  (instructed by I.V. Knight, Crown Solicitor for New South Wales)

MR C.G. GEE, QC:   May it please your Honours, with my learned friend, MR G.A. SEIB, I appear for Dukin Holdings Pty Ltd and Raymond Frederick Scroop, the latter in his capacity as defendant in the original action brought by his late wife, Carol Scroop.  (instructed by Turner Freeman)

MR J.E. MACONACHIE, QC:   If your Honours please, I appear with MR M.T. McCULLOCH, for Bitupave Limited, who is a respondent in each of the three matters and was a defendant, of course, in the first instance.  (instructed by Phillips Fox)

MR C.M. SIMPSON:   If your Honours please, I appear for Raymond Frederick Scroop in his capacity as plaintiff at first instance and as first respondent in No S156 of 1998.  (instructed by Commins Hendricks)

MR W.C. TERRACINI, SC:   I appear for the first respondent, if your Honours please, with my learned friend, MR R.A. SMITH.   (instructed by McGirr James Hall & Associates)

KIRBY J:   Is the position that the estate has no real interest, that it is just the defendants fighting the matter out between themselves or - - -

MR DONOVAN:   Essentially, yes, that is correct.  Essentially, it is, I suppose, an argument between ourselves and Bitupave.

KIRBY J:   Very well resourced defendants fighting a matter out between themselves.

GAUDRON J:   Well, we will hear you then, Mr Donovan.

MR DONOVAN:   Yes.  As your Honours may have gathered, there were originally three actions before Judge O’Reilly in the District Court.  They came before the Court of Appeal as one hearing, although three actions, and there are three applications to this Court.

They arise out of an accident - and may I just spend a moment to give your Honours the factual background very briefly – on 8 April on the Hume Highway.

GAUDRON J:   We know the - - -

KIRBY J:   I think we know all the facts.

MR DONOVAN:   All right.  The point, your Honours, is the question of non‑delegable duty and whether that - - -

GAUDRON J:   What does that mean in this context?

MR DONOVAN:   Well, it means this, your Honour.  The RTA, through a series of documents, contracts, specifications and the like, all of which were before the trial court and the Court of Appeal, engaged Bitupave to carry out certain road work at the relevant area.  They required Bitupave, pursuant to those documents, to have control of the traffic and to be responsible for the signs and other barriers, et cetera, which might be - - -

GAUDRON J:   Where is the relevant clause?

MR DONOVAN:   Where is the relevant clause?  If your Honour would just give me a minute.  I have set out the relevant clauses in our written submission at page 118.  Your Honours will see at the bottom of that page of the application book the various provisions, and I have set out “Bitupave’s obligations included” and that comes from the Court of Appeal’s comments.  In particular, your Honours will see at page - - -

GAUDRON J:   It does not say “sole responsibility”; it does not say “sole responsibility for the protection of persons” or “sole responsibility for all work needed and the safe movement”.  You might, if you had a clause which said that, have an argument that you had delegated all relevant duties.  But you have that problem, together with the provisions, is it, of clause 18 whereby the indemnity only extends to acts and omissions on the part of a contractor and not those for which you remain liable.

MR DONOVAN:   But we would say that the indemnity is not a relevant clause for determining whether there has been a delegation of the job to Bitupave.  We would put, your Honours, that there certainly was that delegation to Bitupave.

GAUDRON J:   Has that been found?  Has anybody construed the relevant provisions of the contract?

MR DONOVAN:   Well, certainly - if I can just go back – the way the Court of Appeal put it is not absolutely clear but perhaps I should just take your Honours to that section for a moment.  At page 100 your Honours will see, of the application book, that Justice Fitzgerald, who delivered the judgment of the Court, said that “The Court was referred to” those various matters.

HAYNE J:   The bite comes at 101, line 14, does it not, the bite for your case:

Bitupave was required to comply with the decisions and directions of RTA’s Superintendent, who had power to take direct action - - -

MR DONOVAN:   Well, that does not mean anything further than in the ordinary course.  Wherever something is delegated to another person, the principal can step in if it wishes.

GAUDRON J:   But what do you mean by a “non-delegable duty” in this context?  Are you meaning that there is no vicarious liability?

MR DONOVAN:   Yes.

GAUDRON J:   Are you meaning anything more than that?

MR DONOVAN:   No, I do not mean anything more than that but I have to point ‑ ‑ ‑

GAUDRON J:   Well, if you do not mean anything more than that, you have to establish that there was no independent duty in your client including not even an independent duty to employ a competent contractor.

MR DONOVAN:   May I, with respect, just point out that there was no claim at any point that a competent contractor had not been engaged.

GAUDRON J:   Now, one of the things I should have thought which pointed to the liability of your client not simply being vicarious liability is the failure to do anything about the letter.

MR DONOVAN:   There are two aspects to that.  First of all, Bitupave itself was aware of that issue.  I am not sure what your Honour is suggesting we should have done other than – at this point.  I am sorry if I misunderstand - - -

HAYNE J:   Well, the police complained, did they not?

MR DONOVAN:   The police complained, yes.

HAYNE J:   And they complained to RTA.

MR DONOVAN:   Yes.

HAYNE J:   And RTA did not do anything about it.

MR DONOVAN:   That is correct.

HAYNE J:   And why is that not enough to found a finding of negligence against RTA, and where then lies the point of general principle?

MR DONOVAN:   May I answer it by saying this:  in Mrs Scroop’s matter that particular point was raised as a particular of negligence.  My memory is, and I may be wrong since your Honour is just trying me on this at the moment, that it was not a particular of negligence put down anywhere else.  That is the only answer I can give to that.

KIRBY J:   Well, that does not seem to square very well with what Justice Fitzgerald says at 103 where he says:

In my opinion, RTA owed a duty of care to Mr and Mrs Scroop, and is directly liable to them according to established principles of the law of negligence.

That is the stumbling block that I have with your application which otherwise has some indication - - -

MR DONOVAN:   Can I answer it in this way:  always a principal is going to owe a duty of care.  That is the starting point.  The next step is, does the principal delegate that as part of the job to another person.

HAYNE J:   I do not follow that.  I really just do not follow what that means.  If it owes a duty, it owes a duty.  The question may then be has it breached it?

MR DONOVAN:   No.

HAYNE J:   The fact that it has employed somebody else to do the work may mean that it did not breach it but it owes a duty.

MR DONOVAN:   No.  May I suggest, your Honour, that the better view ‑ and I appreciate that there are conflicting ways different courts have stated this ‑ may I simply suggest the better view is that it has delegated the duty and therefore it no longer has a primary duty.  There is always this exception of course.  If, for example, the principal steps in and does something directly, for example, by going in and moving the bollards too far apart, as one might say was sort of relevant to this case, if the principal went in and did that, then it has its direct duty because of the actions that it did there.  But in terms of the actual system – let me just go back for a minute.

What was found to be defective here was the use of the bollards as against other systems such as a barrier or little lights, stick and stomps along the edge of the road or, alternatively, putting the bollards closer together or signs or whatever, that is what was found to be essentially the negligence.  That comes out of the system.  It is not something which the ‑ ‑ ‑

GAUDRON J:   A system which your client devised?

MR DONOVAN:   No.

GAUDRON J:   Did it not?

MR DONOVAN:   No, that is not quite accurate.  The system was, for the night, one which Bitupave had devised.  I knows there is a plan but that plan has nothing to do with the night-time layout.  That is only a daytime traffic control.  So, it was Bitupave who had the responsibility for that and carried out that responsibility.  That is where, we say, the whole thing begins and ends.  I appreciate that there is the question of the police complaint but we would say that that, on its own, is - - -

GAUDRON J:   Now, what do you say your duty was that you delegated?

MR DONOVAN:   The duty to have a safe system for cars to pass through that area.

GAUDRON J:   Now, that was your duty to start with?

MR DONOVAN:   To start with, yes.

GAUDRON J:   Well, how can you even talk about delegating that duty?  You may be able to contract to obtain an indemnity but if that was your duty, how do you delegate it?

MR DONOVAN:   I can only say this, your Honour – and I appreciate that there are arguments both ways.  May I say in answer to that, it has never before been held in this country that a road authority in such circumstances cannot delegate its duty.

GAUDRON J:   That may be so because maybe the question that you pose is simply wrong.  It may be that you could posit circumstances in which your only duty was to employ a competent person to do something and there would be no breach of duty if you did that.

MR DONOVAN:   Yes.

GAUDRON J:   And in a sense, you can talk then about a delegable duty, if you like, although again it is not an accurate phrase.  But if you have a duty, how can you delegate it as between you and the injured plaintiff, as distinct from obtain contractual indemnity?

MR DONOVAN:   Because any person – the prima facie position, we would say, your Honour, is that any person engaging a contractor can delegate to that person the whole of the duties, both carrying out the work and for the safety of others.

GAUDRON J:   Yes, as between you and the contractor.

MR DONOVAN:   No.

GAUDRON J:   How does your contract bind the innocent passenger on the road?

MR DONOVAN:   It is not a question of my contract binding the innocent passenger but the law in the past has allowed people – and perhaps that might be arguable - - -

GAUDRON J:   Where?

MR DONOVAN:   Well, in general law of independent contractors, it is the independent contractor who is liable and not the principal.  That has been the general position.  Now, there are certain categories which have been fixed so far of situations where there is a non-delegable duty.  So, if you engage a contractor it is not going to be sufficient to protect you.  The normal situations where that arises through cases such as Kondis and Northern Sandblasting have come to this point, that where the control remains in the principal or where there is a special vulnerability or where there is some sort of dangerous substance brought on to premises, then a non‑delegable duty will be found.  But I can only point out to your Honour that so far roads and traffic authorities have not, in the past, been held to be subject, in this country, to a non-delegable duty.

HAYNE J:   The duty that a road traffic authority may be said to owe to the road user depends upon that authority controlling the circumstances, does it not?

MR DONOVAN:   To some degree, yes, but one has to be careful – if I might just qualify that – because any principal who engages a contractor is going to have some residual control.  But subject to that comment, yes.

HAYNE J:   Undoubtedly, this Authority retained a degree of day‑to‑day control, did it not, at least as the Court of Appeal held?  Which leads me to my concern which is one of, is this the vehicle to debate the issues that you have raised.

MR DONOVAN:   Your Honour, if there is an Achilles heel, and I do not concede that, that is the Achilles heel.  I recognise that.  But may I say in answer to that that there was a clause – and I have just forgotten which clause it was – which did allow the superintendent to – if I can find it:  “he may arrange” certain matters, and there was a person who was present, from time to time each day, but there was no evidence, apart from requests to Bitupave to do certain things - to put the bollards closer together, for example, on one occasion - there was no evidence that that person took an active role in the traffic aspect of the matter as distinct from the works because there will always be a superintendent of works in this type of situation.  Indeed, the evidence which was put forward and which was before Judge O’Reilly in the transcript was that the superintendent was like a clerk of works, and that was the way that was described there.

So that although there is a very general statement – it may be a finding, it may be more a general statement – by the Court of Appeal, the actual evidence was very limited about what sort of control there was left, as distinct from the general control which any principal is going to have over its independent contractor to step in at any time and change the work or whatever it might be.  So that is how we would put that together.

Might I just point this out.  The argument that the Court of Appeal looked at was really on three basis:  first of all, that there was English authority, and we would say that English authority is not applicable here.  The RTA is linked up with the State Government.  It is not like an authority in England.  And they are all very old authorities, by the way.  They are in the last century.  The second point was that this Court had indicated through cases such as Kondis and Northern Sandblasting that the RTA would come within that class of non-delegable duty cases, whatever that might mean.

GAUDRON J:   I do not understand that term.  I think it means there is a duty over and above that of engaging competent workmen.

MR DONOVAN:   That probably is as good a way of putting it, your Honour, yes.  I am using the term in a shorthand way.  It is a term which has found favour in the authorities.  I am not here to say it is an appropriate term or not.  I am here to put it forward as coming out of the past authorities.  There was a third basis which concerned what the Court of Appeal said was an issue of control but we would point out from what I have just said to your Honours that that control issue was not one over and above - other than would normally exist in any principal and contractor.  They are the sort of matters that I wish to put to the Court on those issues.

If your Honours would just excuse me a moment.  There might be just a couple of other things that I wanted to pick up.  Your Honours will find the references to those cases that the Court of Appeal looked at, at page 122 and page 123 of the application book.  I have dealt with the English authorities at page 124.  At page 125, dealt with the road users had little control, and there was a further issue, at 125, concerning proximity and policy.  May I say this, your Honours, that without any question, if this case from the Court of Appeal is allowed to stand, it certainly extends – I will use the phrase again despite its faults – non-delegable duties well beyond the types of cases which have been held to have those sorts of duties in the past and, as I say, I have set out there that - - -

KIRBY J:   What do you say is the significance, from the point of view of the general liability of road authorities?  Could this be limited to a New South Wales decision or do you say that if this decision stands it has significance for road authorities, like your client, throughout Australia.

MR DONOVAN:   Throughout Australia.

KIRBY J:   And essentially means that they cannot, even if they get very competent and well-reputed contractors, shed themselves of liability, they remain liable themselves?

MR DONOVAN:   That is right.  That has to follow from what has been found in this case.

GAUDRON J:   Well, does it, or does it mean that it has a duty of care over and above that of engaging competent contractors?  I think the language in this area is really very confusing.

HAYNE J:   From my own part, I am not sure that the case goes even as far as Justice Gaudron puts to you.  It seems to me that, on one view of the decision of the Court of Appeal, all it is is a finding that there was negligence.  Period.

KIRBY J:   That is what Justice Fitzgerald seems to say at 103 in the middle of the page.

MR DONOVAN:   I appreciate what he seems to say but it does not - - -

KIRBY J:   If that is it, that is fatal to you because it is not a proper vehicle for us to be getting into issues of the delegable duty or non-delegable duty of road traffic authorities.

GAUDRON J:   And there were facts on which a finding of independent negligence could be made, were there not?

MR DONOVAN:   Well, one has to then say just what that was and - - -

HAYNE J:   Well, the letter in the hands of the uninformed third party was a bit difficult to explain, was it not, or the absence of response to the letter from the police was a bit awkward forensically, at least?

MR DONOVAN:   Your Honour, I do not accept that.  I hear what your Honour says but I certainly do not accept that is the situation.  In any event, that was not a particular of negligence in the majority of the matters that were against us.

GAUDRON J:   No, but what it does suggest is you may not have engaged – I mean, even apart from that, it does suggest you may not have engaged a competent contractor.

MR DONOVAN:   There is no evidence of that, your Honour.

GAUDRON J:   Well, that is one of the findings against you, that you did not engage a competent contractor.

MR DONOVAN:   That was not the finding of Judge O’Reilly.  What the evidence was, and I think this is, if I may respectfully put forward this, what Justice Fitzgerald meant was, there was inexperience in this contractor concerning the traffic control plan.

GAUDRON J:   Yes.

MR DONOVAN:   And they said, “This is a new thing.  We are not familiar with this new item which has just been brought in.”  But there was no evidence anywhere which suggested that they were unfamiliar, in a general sense, with traffic control.  May it please the Court.

GAUDRON J:   Yes, thank you.  Yes, Mr Gee.

MR GEE:   Your Honours, could I briefly develop the proposition that could be summarised that the vehicle is not suitable?  Could I give your Honours, very quickly, some passages of factual findings of his Honour the trial judge?  First of all, at 23, his Honour, at line 10, referred to the presence of “an RTA supervisor named Adam Hunter” and the next words are of little importance:

who was on site daily except for odd occasions when Mr Lynch filled in for him.

So, we have Mr Hunter as the RTA supervisor there daily.  He was called.  That is revealed at page 28 where there is a brief summary by his Honour of that gentleman’s evidence and, in particular:

He said that he drove through the site twice only in two months to check for proper delineation and warning.

HAYNE J:   But it is the sentence before which is of more significance, is it not:

He agreed that he was there also to ensure that the traffic control was satisfactory.

MR GEE:   Yes, quite.  Then we have a factual description by his Honour of the point of the previous incident at page 34, lines 5 and following, in which his Honour, after mentioning the fact that Mr Hunter had recorded the previous incident:

in his diary, namely that the police officer from Tarcutta was expressing concerning at the state of the tarmac edge.

He went on to say: 

It seems to me to be unacceptable that the RTA and Bitupave should be permitting a similar state of affairs to exist more than one month later.

I just draw attention, without wanting to make too much of the next two lines, incidentally, in his Honour’s judgment which could be read as suggesting that learned counsel then appearing for the RTA did not suggest that there was no duty of care but rather, it had been adequately discharged.  However, one must not make too much of that.

What is more important, in my respectful submission, is a very specific finding at page 38 by his Honour the trial judge.  Starting at line 10, your Honours:

So it seems to me that the evidence establishes that it was quite clear that this 300mm vertical drop on the edge of a very heavily used main highway without illuminated delineators –

it is –

neither far-fetched nor fanciful and readily capable of being dealt with…..It was a danger and any reasonable RTA supervisor or bitumen contracting supervisor should have recognised it.

KIRBY J:   Just pause there.  Why should an RTA supervisor or bitumen contracting supervisor have recognised that it interfered, given that they had competent contractors?

MR GEE:   Well, your Honour, given that the RTA had a power to supervise and did, in fact, exercise it by the daily presence of Mr Hunter, the equivalent of what your Honour is putting, with respect, is that he could simply shrug his shoulders at what he saw or what a reasonable person in his position should have appreciated.  Now, that, with respect, cannot be right.  But I particularly wanted to put what his Honour found at line 40, where he said, having set out various factual matters of the kind I have referred to:

I am satisfied that there was negligence by Bitupave and by RTA.

Now, with great respect, this was a case that did, admittedly, involve references to the question of a possible non‑delegable duty.  But it was not decided on that basis.

KIRBY J:   And is that what Justice Fitzgerald meant in that passage on 103 that has been worrying me? 

In my opinion, RTA owed a duty of care to Mr and Mrs Scroop, and is directly liable to them according to established principles of the law of negligence.

MR GEE:   Yes.  That, with respect, is the way his Honour’s passage is to be read.

GAUDRON J:   And, seemingly, the trial judge also found that at page 38 where he says, “there was negligence by Bitupave and by RTA.”

MR GEE:   With respect, your Honour, that was the passage I was just seeking to emphasise.

KIRBY J:   Now, what is your answer to the suggestion that this is an horrendous tale that is going to inflict upon RTA authorities throughout Australia with the huge expanses of our continental country and great areas being repaired that they have never been liable to before?  The law had never held them liable to.  Because that is the thing that worried me, as to whether that is a special leave matter.

MR GEE:   The problem, with great respect, is this, your Honour:  supposing, for a moment, that leave were granted and the matter was debated before the Full Court and the Full Court was attracted to the concept that a road authority did not necessarily fall into this concept of the so-called non‑delegable duty.  What would the court then do, with respect, with the problems of the factual findings of this very case which suggest independent - - -

KIRBY J:   Well, that is the vehicle issue, is it not?  But there are some dicta in the Court of Appeal decision – perhaps the trial judge too – that could push the matter of the liability of road traffic authorities throughout Australia further than I would have been inclined to put.

MR GEE:   With great respect, the only reference by his Honour the trial judge to that was in his, with respect, rather academic debate about how the indemnity might operate.  That can be seen, I think, at 36 of the application book.  There could be no suggestion, with great respect to your Honours, looking at the matter in a slightly wider way, that in some way a State authority, be it a road authority or any other, given that it owes a duty, is otherwise outside the scope of the rules.  After all - - -

KIRBY J:   All the usual suspects are there Kondis, Introvigne.

MR GEE:   Yes, that is so.  And in Kondis, if I may name one of the suspects - - -

KIRBY J:   Did somebody toss in Northern Sandblasting, whatever the holding of that case is?

MR GEE:   Yes, it is there, your Honour, it is there.  But I wanted to make two points about Kondis, both short, I hope.  The first is that after all, Kondis involved the State Transport Authority of the State of Victoria.  It is not as if there was the slightest suggestion that the non-delegable duty concept could not have an application to an authority.  That is the first point.

The second point is that in Kondis itself, there is an interesting mirror of what we have in this case.  At the end of his Honour Justice Mason’s judgment, as he then was, after his discussion of the question of non-delegable duty, he said at page 688 – and I am only reading a few lines, your Honours, if the Court will bear with me – about point 9 on the page:

Even if I had not concluded that the respondent was liable for the default of the independent contractor in failing to prescribe and adopt a safe system on the footing that the duty to provide a safe system was non-delegable –

even if I had not done that –

I should have concluded that the respondent –

that is the State authority –

was in breach of its duty on the grounds that the appellant’s foreman –

that is, an employee of the State Transport Authority –

failed to direct him not to be under the jib of the crane during the extension procedure.  Although the primary judge found that the appellant was acting under the control of Clissold –

that was the crane driver –

Clissold’s control of the appellant was not such as to exclude the giving of directions to the appellant by his foreman.

In other words, his Honour moved from the wider questions of possible non‑delegable duty, to the simple factual case that was involved there, and held, in a parallel that we submit is close to this very case, that questions of non‑delegable duty can be put to one side in favour of seeing the case as a proper resolution, both at first instance and on appeal, of a factual issue.

His Honour Justice Dawson, in the same case, at 695, expressly agreed with Justice Mason on the basis:

that the respondent was in breach of its duty of care as an employer to provide a safe system of work.  That breach was the failure…..to direct the appellant to stay clear of the jib of the crane whilst it was being extended.

GAUDRON J:   Mr Gee, we do not think we need to hear further from your side of the Bar table. 

MR GEE:   I am obliged to your Honour.

GAUDRON J:   Mr Donovan, anything in reply?

MR DONOVAN:   Your Honour, really, there is not very much more I can say.  The issue is a clear one.  If your Honours take the view that the facts are such that this is not going to be an appropriate vehicle, there is nothing much more I can say about it.

GAUDRON J:   Thank you, Mr Donovan.

Given the evidence in this case, there is ample basis for a finding that the applicant was negligent independently of any act or omission on the part of its contractor, a finding which appears to have been made at first instance, see application book page 38.  Thus this is not a suitable vehicle to determine any question of general principle with respect to a non‑delegable duty of care, whatever that means in the present context.  Accordingly, special leave is refused.

You do not oppose an order as to costs?

MR GEE:   We ask for costs, your Honour.

GAUDRON J:   Yes.  It is refused with costs.

MR MACONACHIE:   Similarly, your Honour.

GAUDRON J:   With costs, I think, is sufficient.  Thank you.

The Court will now adjourn to reconstitute for the next matter.

AT 10.48 AM THE MATTER WAS CONCLUDED