New South Wales Court of Appeal CITATION: Leichhardt Municipal Council v. Montgomery [2007] NSWCA 361 HEARING DATE(S): 6 December 2007 JUDGMENT OF: Hodgson JA at 1; Tobias JA at 21; McColl JA at 22 EX TEMPORE JUDGMENT DATE: 6 December 2007 DECISION: 1. Appeal allowed. 2. Order 1 made by the District Court on 16 December 2004 set aside, and in lieu thereof verdict and judgment for the Council. 3. The respondent to pay the appellant's costs of the remitted hearing to this Court and to have a certificate under the Suitor's Fund Act in respect of those costs if otherwise eligible. CATCHWORDS: NEGLIGENCE - Road authority's duty of care to pedestrians - Not a non-delegable duty - Whether breach by road authority itself proven. CASES CITED: Wyong Shire Council v. Shirt (1980) 146 CLR 40 PARTIES: Leichhardt Municipal Council - appellant Leslie Montgomery - respondent FILE NUMBER(S): CA 41190/04 COUNSEL: Mr. P. Garling SC with Mr. R.S. Sheldon for appellant Mr. G. Miller QC with Mr. A. Reoch for respondent SOLICITORS: DLA Phillips Fox, Sydney for appellant Lloyd & Lloyd, Sydney for respondent LOWER COURT JURISDICTION: Supreme Court - Court of Appeal LOWER COURT FILE NUMBER(S): CA 41190/04 LOWER COURT DATE OF DECISION: 8 December 2005 LOWER COURT MEDIUM NEUTRAL CITATION: [2005] NSWCA 432 IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 41190/04 DC 6766/02 HODGSON JA TOBIAS JA McCOLL JA Thursday 6 December 2007 LEICHHARDT MUNICIPAL COUNCIL V. MONTGOMERY Judgment 1 HODGSON JA: This is a further hearing of a matter in which a judgment was given by the Court of Appeal on 8 December 2005, dismissing an appeal brought by the appellant Council against a judgment given in favour of the respondent, Mr Montgomery, in the District Court. The appeal was dismissed on the basis that the Court considered that the Council had a non-delegable duty to the respondent, so that the Council was liable for negligence of its contractor. 2 The Council appealed from that decision to the High Court, and that appeal was allowed by the High Court on 27 February 2007. The High Court held that the Council did not have a non-delegable duty, so that the basis of this Court's previous decision and the decision of the District Court Judge was taken away. 3 However, there was in the High Court a Notice of Contention alleging that the Council itself had been negligent in the matter; and the High Court remitted the matter to the Court of Appeal to deal with that Notice of Contention. That Notice of Contention raised the following grounds: 1. The Court of Appeal should have found that the appellant was negligent, other than through its non-delegable duty of care, in that the appellant: a. Failed to deny pedestrians access to the footpath whilst construction work was in progress. b. Failed to properly supervise the works in that no proper system of inspection was mandated to the contractor to ensure that there were no latent defects, traps or, holes underneath the carpet placed on the footpath as required by the appellants specifications imposed on the contractor. c. Failed to properly and adequately supervise the activities of the contractor. d. Failed to specify in the specifications to the contractor that duck boards or other hard temporary surfaces be placed on the footpath whilst the contractual works were being carried out. 4 The circumstances of the matter are set out in the previous judgment of the Court of Appeal [2005] NSWCA 432, and I will not repeat them. 5 The matter relied on by the respondent to justify a finding of negligence in the Council has been put this way by Mr Miller QC for the respondent. 6 He submitted that the footpath where the respondent was injured was in substance a building site. The contractor engaged by the Council had access and control of the site during the hours 7.30pm to 5.30am Sunday to Thursday, but otherwise this building site was in the control of the Council. The specifications of the job required that carpet be laid on building work that was progressing. This work done on the footpath would produce a potentially unstable surface. To provide in specifications for carpet to be laid on such an unstable surface was to expose pedestrians to an unreasonable risk of injury. Mr Miller submitted that, with work progressing in accordance with these specifications, there could be anything under the carpet; and the risk to pedestrians from a carpet laid over such potentially unstable surface was a matter of commonsense. 7 The Notice of Contention put as one matter of negligence that the Council failed to deny pedestrians access to the footpath while construction work was in progress. However the aspect of negligence most forcefully advanced in oral submissions was that the Council failed to require that duckboards, or other hard temporary surfaces, be placed on the footpath while the contractual works were being carried out. 8 An assessment of these submissions on behalf of the respondent must be undertaken having regard to the way the case was pleaded and conducted before the District Court. The particulars of negligence that were included in the Statement of Claim, which was a statement of claim brought against both the Council and the contractor, were as follows: (a) Failing to take any or any adequate precautions for the safety of the Plaintiff; (b) Exposing the Plaintiff to a risk of injury which could have been avoided by the exercise of reasonable care; (c) Failing to provide the Plaintiff with a safe means of traversing the footpath at the said location on Parramatta Road; (d) Failing to provide the Plaintiff with a safe surface on which to walk; (e) Failing to ensure that the area where the Plaintiff was passing was in a safe condition; (f) Maintaining the works on the footpath in an unsafe condition; (g) Failing to observe that the Plaintiff or persons in the position of the Plaintiff were being placed in a position of peril; (h) Failing to take reasonable steps to prevent risk of injury to the Plaintiff or persons in the position of the Plaintiff; (i) Installing, building or maintaining the said carpet style covering which hid a hole in the footpath; (j) Failing to warn of the hidden uneven surface of the footpath; (k) Failing to provide a safe route across the footpath during work carried out to the footpath; and (l) Failing to warn of a hidden trap in the surface of the footpath. 9 It appears that no more specific particulars were given of the alleged negligence of the Council. 10 At the hearing of the case, the Council sought to lead evidence as to the competence of the contractor and its knowledge of the competence of the contractor; and that evidence was objected to by the respondent's counsel, and was excluded. 11 Evidence was given before the District Court by Mr Fitzpatrick-Barr, who was a civil engineer employed by the Council, who had the primary responsibility on behalf of the Council for this project. He was asked questions about the requirement in the specifications for the laying of carpet over areas where work was progressing, and he said that the reason for this was to prevent soil and dust entering the shops that fronted onto the footpath. 12 He gave evidence that the work being carried out along the footpath was to be carried out in 30-40 metre lengths, the purpose of this being to keep excavation works to a minimum, so that the works could be closed up and then moved on to the next stage of the works. His evidence was that, apart from that direction and the specifications, there were no other directions to the contractor as to how it was to carry out the work, and he gave evidence that he went to inspect the works two to three times a week. 13 It was put to him that, in relation to works that were not completed, that is were partly done, it was his understanding that carpet would be laid over the works, and he agreed with that. It was put to him that he would expect that pedestrians would walk upon the carpet, and he agreed with that. It was put to him that pedestrians would walk on whatever was underneath the carpet, and he also agreed to that. 14 It was not explicitly put either that pedestrians should have been excluded from the footpath while work was being undertaken, or that duckboards or some other hard surface should have been provided during the construction. 15 In circumstances where it was not alleged by the respondent that the contractor selected by the Council was not a competent contractor, or that the Council had not taken reasonable steps to ensure that the contractor it engaged was a reasonable contractor, and where the respondent had objected to evidence being led by the Council in relation to those matters, it seems to me clear that an assessment of whether the Council breached its duty of care to the respondent must be assessed on the assumption that the Council was not negligent in relation to the selection of the contractor, and that the Council could reasonably proceed on the assumption that the contractor was competent. 16 The question then whether the Council was in breach of its duty of care must be approached having regard to the considerations referred to in the case of Wyong Shire Council v. Shirt (1980) 146 CLR 40. 17 It is necessary to ask whether a reasonable council, in the position of the Council in this case, would have foreseen a risk of injury to pedestrians from work being conducted in the way provided for by the specifications, and by the practices spoken about by the civil engineer. If such a risk would have been foreseen, then the next question would be what, if anything, would a reasonable council have done to deal with that risk, having regard to the seriousness of any damage or injury that could be caused, and the probability of the risk eventuating. 18 In assessing that matter, a reasonable council would have regard to the remoteness of the likelihood that a competent contractor would lay carpet over a surface which was unstable or otherwise such as to give rise to a danger to pedestrians. Particularly having regard to the circumstance that the alternatives, such as excluding pedestrians from the footpath altogether, or laying down duckboards or other hard surfaces, were not explored in the evidence below, so that an opportunity was not given to the Council to explore possibly difficulties and disadvantages of those alternatives, it seems to me that the evidence in this case does not justify a finding that the Council breached its duty, when that matter is approached in that way. 19 For those reasons, it seems to me that the respondent is not entitled to a judgment against the Council on the alternative basis that has been referred back to this Court; and for those reasons in my opinion the appropriate order now is that the appeal to this Court be allowed, the judgment against the Council be set aside, and that in lieu thereof there be a judgment for the Council below with the respondent to pay the Council's costs of the proceedings. 20 We may have to hear some submissions as to what the position is in relation to the costs of the appeal. 21 TOBIAS JA: I agree with the orders proposed by the presiding judge for the reasons that he has given. 22 MCCOLL JA: I also agree. (Discussion on costs) 23 HODGSON JA: It has been drawn to my attention that the Council undertook to the High Court that it would not seek to disturb orders for costs which have been made in the courts below, and Mr Garling SC accepts that this means that the costs orders in favour of the respondent made by the District Court, and made by this Court for the previous stage of this appeal, should stand. Mr Garling, however, seeks the costs of the remitted hearing which has been concluded today, and Mr Miller makes no submission against that. However he has applied for a suitor's fund certificate, and the Court by majority is prepared to give him that certificate. 24 The orders of the Court are: 1. Appeal allowed. 2. Order 1 made by the District Court on 16 December 2004 set aside, and in lieu thereof verdict and judgment for the Council. 3. The respondent to pay the appellant's costs of the remitted hearing to this Court and to have a certificate under the Suitor's Fund Act in respect of those costs if otherwise eligible. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.