Leichhardt Municipal Council v. Montgomery: non-delegable duties and roads authorities.

• Jurisdiction: Australia
• Date: 01 April 2008
• Author: Witting, Christian

[In Leichhardt Municipal Council v Montgomery, the High Court of Australia was faced with two important questions. It was required to rule on whether a roads authority, owes a non-delegable duty to a pedestrian using the road. The Court refused to recognise such a duty. It was also invited to comment upon the fundamental nature of the non-delegable duty. A majority of the Court ruled that the non-delegable duty, is not a freestanding tort, but rather a doctrine of strict liability, arising in cases of negligence. This case note critiques the model of liability adopted by the Court and argues that the non-delegable duty is best seen as an independent tort of strict liability.]

CONTENTS I Introduction II Facts of the Case and Lower Court Judgments III The High Court's Decision A Impact of the Governing Statute B Impact of the Decision in Brodie C Applicability of Non-Delegable Duty Principles IV Leichhardt in Perspective V Exploring the Non-Delegable Duty A The Non-Delegable Duty As a Tort Doctrine B Strict Liability C Justifications for the Non-Delegable Duty VI Conclusion I INTRODUCTION

The non-delegable duty is a form of obligation under which it is said that, although the duty-holder may delegate the performance of a task, they 'cannot "delegate" his duty'. (1) The duty-holder will therefore be legally responsible for any failures in the performance of the task. This is illustrated by the non-delegable obligation of workplace management to provide a safe system of work--it matters not that the workers themselves have the ability to implement such a system and to avoid causing injury. (2)

It has been recognised that the non-delegable duty entails 'stricter obligations on the person who owes another [the non-delegable duty] than are imposed on a similarly positioned person under an ordinary duty of care' in negligence. (3) The obligation requires the taking of positive action, where necessary, in order to avoid harm. Beyond this, however, much about the non-delegable duty has remained in dispute.

The High Court's recent decision in Leichhardt Municipal Council v Montgomery (2007) 230 CLR 22 ('Leichhardt') sheds some light upon the nature of the non-delegable duty in Australian law and upon the obligation to which it gives rise. In this case, the respondent, Mr Montgomery, fell into a telecommunications pit in the footpath and injured his knee. The non-delegable duty was pleaded in order to establish responsibility on the part of the Council for the acts and omissions of an independent contractor charged with the task of repairing the road. In holding that the roads authority was not liable to the pedestrian, a majority of the High Court held that the non-delegable duty is a doctrine of the law of negligence and that it involves the imposition of strict liability. The Court rejected the view that the non-delegable duty is an independent tort. This case note reviews the Court's decision and argues that it erred in its refusal to recognise the duty as an independent tort.

II FACTS OF THE CASE AND LOWER COURT JUDGMENTS

The appellant was the roads authority responsible for the maintenance of Parramatta Road, Leichhardt, in New South Wales. The respondent, Mr Montgomery, was walking on the footpath adjacent to that road. Under s 4 of the Roads Act 1993 (NSW) ('Roads Act'), the footpath comprised part of the road. (4) The Council had engaged a contractor, Roan Constructions Pty Ltd ('Roan'), to undertake repairs. Part of the specifications for the work required that a carpet covering be placed over the area under repair when work was not being done in order to provide for pedestrian access. In the relevant stretch of footpath, there was a telecommunications pit with a broken cover which had been carelessly concealed with carpet by Roan's employees. The carpet gave way from under Mr Montgomery and he fell into the pit, suffering a serious knee injury. Mr Montgomery brought actions against both Roan and the Council. The former claim was compromised prior to hearing and Mr Montgomery proceeded with the action against the Council for the balance of his losses. He pleaded both negligence and breach of a non-delegable duty. The action regarding negligence simpliciter was not the subject of any findings either in the District Court (5) or on appeal to the NSW Court of Appeal. (6) This was because both courts accepted that 'the council owed to the plaintiff a non delegable duty of care, notwithstanding the fact that the footpath reconstruction works ... were being carried out by a contractor'. (7) This duty was held to have been breached, even though no fault had been proven on the part of the Council. The finding of the Court of Appeal was summarised in these words:

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 ... (8) The appeal to the High Court of Australia was mainly concerned with whether it is correct to apply non-delegable duty principles to hold a roads authority liable for the careless acts of its contractor. In considering this matter, three issues arose for discussion: (1) the impact of the governing statute upon the application of common law rules; (2) the impact of the decision in Brodie v Singleton Shire Council ('Brodie'); (9) and (3) the applicability, on the facts, of non-delegable duty principles, (10) These issues will be considered in turn before a more extended analysis is undertaken of the non-delegable duty.

III THE HIGH COURT'S DECISION

A Impact of the Governing Statute

A council is constituted and empowered to act under statute. In this case, the relevant powers were to be found in the Roads Act. The Court acknowledged that examination of the statute was required to determine whether its provisions were consistent with the imposition of a common law obligation on the Council. Kirby J agreed with the statement by Gleeson CJ that:

The common law should define the duty of care to which a roads authority is subject by reference to the nature of the statutory powers given to the authority, and the legislative intendment discernible from the terms in which those powers are granted, considered in the light of the purposes for which they are conferred. (11) Their Honours both found that while the provisions of the Roads Act did not altogether preclude liability on the part of the Council, they did not create liability or impose a specific form of duty upon the Council. (12) Thus, it was up to the Court to determine the Council's liability at common law, if any, for injuries caused by the independent contractor to the pedestrian, Mr Montgomery. (13)

B Impact of the Decision in Brodie

The earlier decision of the High Court in Brodie was the subject of discussion in Leichhardt because Brodie also concerned a roads authority. In Brodie, the Court held that the old common law rule that a roads authority was not liable for nonfeasance, but only for misfeasance, was no longer correct. This was in part a result of the supposed difficulty of drawing a distinction between nonfeasance and misfeasance. (14) Ordinary rules of negligence were to be applied to the conduct of the roads authority. (15) The question in Leichhardt was whether Brodie was relevant to determining whether or not the Council owed a non-delegable duty to pedestrians.

In its submissions, the Council contended that Brodie was inconsistent with the proposition that it had owed a non-delegable duty to Mr Montgomery. The contention was that Brodie

was designed to subsume the liability of roads and highway authorities within the general law of negligence--by inference removing not only exceptional immunities (as expressed in the former highway rule) but also exceptional liability (as contained in the non-delegable duty principle propounded by [Mr Montgomery]). (16) The High Court held that Brodie had no direct relevance to the issue because Mr Montgomery's injuries arose from misfeasance, rather than nonfeasance. (17) The Council had commenced works on the road through its contractor Roan and that work had been performed negligently. (18) Cases such as this had never been the subject of a special rule.

By way of further elaboration, Kirby J agreed with the Council's contention that Brodie was unlikely to have laid the groundwork for 'an additional, enhanced liability in the form of a non-delegable duty'. (19) However, he held that it could not be understood as precluding the recognition of a non-delegable duty owed by a roads authority to a road user. (20)

C Applicability of Non-Delegable Duty Principles

The High Court's determinations on the effect of the Roads Act and the Brodie decision helped to clear the way for a principled consideration of whether or not a non-delegable duty should be recognised as owed by a roads authority to a road user. There was unanimous agreement that such a duty ought not to be recognised and that the case was to be governed by ordinary principles of negligence. As such, the case was remitted to the NSW Court of Appeal for further hearing regarding the potential liability of the Council in negligence. (21) The reasons given by the High Court for denying the existence of a non-delegable duty will now be examined.

Gleeson CJ spoke of the non-delegable duty as a doctrine which is pleaded in cases of negligence: '[i]t is a proposition of law concerning the nature or content of the duty'. (22) This duty was said to involve 'a special responsibility ... to see that care is taken'. (23) The effect of these statements is that his Honour accepted that, insofar as the non-delegable duty was relevant, it was a doctrine of negligence rather than...