Dear Jason;
Effectively you are asking whether it is justified to impose a non-delegable duty of care in relation to passing pedestrians on an owner of a property adjacent to the area where pedestrians walk, which would be breached by the carelessness of a contractor. As I see it the orthodox principles of NDD require consideration of the relationship between the defendant and the person injured (unlike vicarious liability, which focuses on the relationship between the defendant and the actual tortfeasor.) In Australia these days, I think the courts would hold in these circumstances that there was no liability, following the decision of the High Court in Leichhardt Municipal Council v Montgomery [2007] HCA 6; (2007) 233 ALR 200. Applying the judgment of Kirby J in that decision (who was, believe it or not, in the majority!), referring to {though not necessarily agreeing with!} articles by list members John Murphy and Robert Stevens, it would seem that there was no sense in which the occupier had assumed responsibility for, or authority over, a pedestrian in these circumstances (arguably the facts of LMM v Montgomery are "stronger" than Tarry, as there the council had engaged contractors to dig a hole in a public road, but the High Court held that no NDD was owed to pedestrians even in that case.)
Regards
Neil
On 11/09/2012, at 5:41 AM, Jason Neyers wrote:
Dear Colleagues:
I would be interested in anyone's view as to whether
Tarry v
Ashton is correctly decided (as a matter of principle). The
facts were as follows: The defendant was an occupier of a house,
from the front of which
a heavy lamp projected over the public foot-pavement. As the
plaintiff
was walking along, the lamp fell on her and injured her. The lamp
fell because a person employed by the defendant hung on the lamp
after his ladder fell away. The jury found that the real reason
that the lamp fell was because the screws fastening it to building
were decayed (ie it would not have fallen had the screws been
intact). They also found that the occupier was not negligent (he did
not know the screws were decayed and the person employed to work on
the lamp was a professional lamp repair-person). The court found
the defendant liable on the basis that if a person maintains a lamp
projecting over the highway for
his own purposes it is his duty to maintain it; and if it causes
injury owing to want of repair, it is no answer on
his part that he had employed a competent person to repair it.
The decision seems a little off to me since the lamp did not create
a state of affairs that impeded anyone's right to pass or repass
over the public highway (and is therefore not a public nuisance on
that basis). Moreover, since it is therefore the claimant's right
to bodily integrity that is at issue, my gut reaction is that the
owner should be liable only if he was negligent. I realize that
there is a line of authority which Tarry spawned which holds people
strictly liable for personal injury caused by structures near the
public highways but I what I am grappling with is whether this is a
legitimate offshoot or something that needs pruning.
Any and all thoughts appreciated.
--
Jason Neyers
Cassels Brock LLP Faculty Fellow in Contract Law
Associate Professor of Law
Faculty of Law
Western University
N6A 3K7
(519) 661-2111 x. 88435