Leichhardt Municipal Council v Montgomery [2007] HCA 6

HIGH COURT OF AUSTRALIA

GLEESON CJ

KIRBY, HAYNE, CALLINAN AND CRENNAN JJ

LEICHHARDT MUNICIPAL COUNCIL APPELLANT

AND

LESLIE MONTGOMERY RESPONDENT

Leichhardt Municipal Council v Montgomery [2007] HCA 6

27 February 2007

S188/2006

ORDER

1. Appeal allowed;

2. Set aside so much of paragraph 1 of the orders of the Court of Appeal of the Supreme Court of New South Wales made on 8 December 2005 as dismissed the appeal to that Court;

3. Remit the matter to the Court of Appeal of the Supreme Court of New South Wales for further hearing; and

4. The appellant to pay the respondent's costs of the appeal to this Court.

On appeal from the Supreme Court of New South Wales

Representation

P R Garling SC with R S Sheldon for the appellant (instructed by Phillips Fox)

G T W Miller QC with A R Reoch for the respondent (instructed by Teakle Ormsby Conn)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Leichhardt Municipal Council v Montgomery

Torts – Negligence – Duty of care – Roads authority – Independent contractor employed by roads authority to perform work on public road – Work not extra-hazardous – Independent contractor performed work negligently – Road user injured – Whether roads authority owed road user a non-delegable duty of care – Common features of relationships attracting non-delegable duties of care in common law of Australia – Whether existence of non-delegable duty of care consistent with Brodie v Singleton Shire Council (2005) 206 CLR 512 – Whether exception to general rule that a party is not liable for the negligence of an independent contractor.

Statutes – Interpretation – Roads Act 1993 (NSW) – Nature of powers given to roads authority – Power of roads authority to carry out road work – Right of member of the public to pass along public road – Whether statutory scheme evinced an intention that roads authority owed road user a non-delegable duty of care – Whether statutory scheme inconsistent with existence of a non-delegable duty – Significance of statute for applicable rule of the common law.