Date: Mon, 4 Sep 2006 12:51:14 +1000

From: Neil Foster

Subject: Transcript of HC on non-delegable duty; appeal for academics to write

Dear Colleagues;

For those who may be interested the transcript of the High Court of Australia appeal in Leichhardt Council v Montgomery is now available, dealing with the question whether there is a non-delegable duty of care owed by a roads authority to road-users (ie whether the Council is liable for the carelessness of a contractor digging up a road or footpath on behalf of the Council.)

I was particularly struck by the following exchange:

**********

KIRBY J: There must be academic articles where learned authors have examined the governing or uniting concept in these cases. Have you found any recent ones?

MR GARLING: Not recent ones, your Honour. There certainly was a series by Professor Swanton and Professor McDonald which are footnoted in a number of the cases including Brodie, I think, about that but I have not found anything recent on that question.

KIRBY J: I think I will have to ask you, if you would not mind, to have a look for those because when you are struggling with trying to see the concept here it is just not a couple of categories. You have to have some theory behind why you have extended it in these cases and whether that theory applies to the present instance. Often academics have more time to look at that sort of question than judges do.

********

A challenge to academics to keep writing and analysing, not just to bulk up the CV or get the next promotion, but to assist in the proper development of the law! I actually think some of the papers we had at the conference in London would be interesting for the court, though they are not formally published yet.

There is incidentally also a transcript from the next day for the hearing of the appeal in State of New South Wales v Ibbett [2006] HCATrans 463 (31 August 2006) which deals with the question of exemplary damages in cases of vicarious liability and may lead to the court having to comment on whether it prefers the master's tort or the servant's tort theory from Darling Island.

Regards
Neil Foster

Neil Foster
Lecturer & LLB Program Convenor
School of Law
Faculty of Business & Law
University of Newcastle
Callaghan NSW 2308
AUSTRALIA
ph 02 4921 7430
fax 02 4921 6931

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