(q) the desirability of, and in some circumstances, need for conformance and coherence in the structure and fabric of the common law.
[104] There is no suggestion in the cases that it is compulsory in any given case to make findings about all of these features. Nor should the list be seen as exhaustive. Rather, it provides a non-exhaustive universe of considerations of the kind relevant to the evaluative task of imputation of the duty and the identification of its scope and content.
[105] The task of imputation has been expressed as one not involving policy, but a search for principle: see especially Sullivan v Moody at 579 [49]. The assessment of the facts in order to decide whether the law will impute a duty, and if so its extent, involves an evaluative judgment which includes normative considerations as to the appropriateness of the imputation of legal responsibility and the extent of thereof. Some of the salient features require an attendance to legal considerations within the evaluative judgment.
[106] I have described "foreseeability" as a salient feature; it is perhaps better expressed that the use of salient features operates as a control measure on foreseeability employed at the level of abstraction earlier discussed, for example by Glass JA in Shirt as the foundation for the imputation of duty of care. In a novel area, reasonable foreseeability of harm is inadequate alone to found a conclusion of duty. Close analysis of the facts and a consideration of these kinds of factors will assist in a reasoned evaluative decision whether to impute a duty. Whilst simple formulae such as "proximity" or "fairness" do not encapsulate the task, they fall within it as part of the evaluative judgment of the appropriateness of legal imputation of responsibility."
68 This analysis was recently applied by Hodgson JA in Makawe Pty Limited v Randwick City Council [2009] NSWCA 412. That was a case involving a claim for economic loss against a council by a purchaser of land from developers. The basis for the claim was council approval of the building development when it had in its possession a geotechnical report stating the water table to be at about the same level as the proposed basement floor slab.
69 In the circumstances of this case the relevant duty of care must be a duty relating to, or at least including, the risk of physical injury from the collapse of the ceiling of the first level. As Stavar and the authorities referred to therein make clear, it is not sufficient in order to impose a duty of care to merely establish foreseeability of harm and the capacity to do something about it. That being so, it does not necessarily follow that, even if Mr Byatt saw something dangerous or potentially dangerous in respect of any part of the premises other than the structural flooring, Byatt owed a legal obligation to third parties to say or do anything in respect of that danger.
70 Insofar as "salient features" or factors are concerned, the following are important in this case. The defective ceiling was constructed by others and Byatt had no involvement in its design or construction. Accordingly, the case against Byatt is properly characterised as a case about a failure to warn in respect of the default of others. The case cannot involve any allegation of a positive breach by Byatt of something that it was engaged to do in the sense that something which it did created the danger. Byatt is not in a position in any way analogous to that of a manufacturer or designer of a harmful product.
71 As Stavar makes clear, in novel situations one has to focus upon the nature of the relationship between the plaintiff and the putative tortfeasor. It is clear that the "salient features" in a mesothelioma case (Caltex) may be different to the "salient features" in a local council case (Makawe) and may be different again to the "salient features" in a case involving a structural engineer. As Stavar made clear the "salient features" listed were not exhaustive and the particular features listed there may not be relevant in every case.
72 Unlike the council in Makawe, Byatt was in a contractual relationship which limited the extent of its obligations to Stonewall. Although Caltex was in a contractual relationship of employment with the husband of the plaintiff in Stavar, that was a completely different type of contractual relationship to the very specific retainer between Stonewall and Byatt.
73 The major factor or "salient feature" in this case for the determination of the content of any legal duty to be imputed to Byatt must be "the nature of the activity undertaken by the defendant". This involves an examination of the precise terms of its contract with Stonewall. In that regard the other "salient features" identified in Caltex are of substantially lesser importance.
74 I have already found that the retainer of Byatt by Stonewall was expressly limited. Perhaps the most succinct statement of that retainer is in the opening sentence of the Byatt report of 12 August where it is stated to be:
"An investigation into the nature of the construction of the suspended floors located at the first and second levels in an attempt to evaluate their respective loading capacities."
75 While it is clear from the authorities that the terms of a contractual relationship between two parties does not determine the obligations of one of the contracting parties to a third party in tort, it remains an important consideration. In Drummond and Rosen Pty Limited v Easey [2009] NSWCA 74, Handley AJA, with whom Tobias JA and Macfarlan JA agreed, said:
"[60] That leaves for consideration the duty, if any, owed by the architects to the plaintiff for the slip resisting qualities of these tiles. The relevant test is that established by the judgment of Windeyer J in Voli v Inglewood Shire Council (1963) 110 CLR 74 at 85:
"… what an architect must do to avoid liability for negligence cannot be more precisely defined than by saying that he must use reasonable care, skill and diligence in the performance of the work he undertakes … neither the terms of the architect's engagement, nor the terms of the building contract, can operate to discharge the architect from a duty of care to persons who are strangers to those contracts. Nor can they directly determine what he must do to satisfy his duty to such persons. That duty is cast upon him by law, not because he made a contract, but because he entered upon the work. Nevertheless his contract with the building owner is not an irrelevant circumstance. It determines what was the task upon which he entered."
61 These principles were affirmed in Florida Hotels Pty Ltd v Mayo (1965) 113 CLR 588 at 599 and 603."
76 Expert evidence was given in this matter by three structural engineers: Mr Fisher (retained by the plaintiff), Mr Barry (retained by Stonewall) and Mr Alden (retained by Byatt). The opinions of Messrs Fisher and Barry as set out in their reports assumed knowledge on the part of Byatt of the contents of the letter from Council to Mr Creighton of 18 June 2002 and knowledge of the contents and of the email sent by Mr Harper on 11 June. Those opinions have to be read in the light of my rejection of the evidence of Mr Creighton on these issues and my finding of a more limited retainer. This significantly limited the value of their reports.
77 Subject to that qualification, both Mr Fisher and Mr Barry seemed to suggest that because the work which Byatt had been retained to perform was being carried out in the context of the renewal of a POPE authorisation, the obligation of Byatt was to go beyond the terms of its retainer and in some fashion, carry out a safety audit of the whole building. Mr Alden took a more restrictive approach and was of the opinion that Byatt's obligation was to fulfill the terms of its retainer and nothing more.
78 In his evidence, Mr Byatt agreed that he understood that his report would be sent to council and would be used for the purpose of supporting Stonewall's application for a renewal of its POPE authorisation.
79 Despite the strongly expressed opinions of Messrs Fisher and Barry, I do not see why a structural engineer, as distinct from any other professional who is expert in a particular field, should be required to go beyond the terms of his or her or its retainer. I accept that in meeting the terms of a particular retainer, a number of subsidiary steps may need to be taken but that is not the proposition underlying the opinions of Messrs Fisher and Barry. They postulate obligations going considerably beyond the actual retainer. On this issue, it seems to me that the opinion of Mr Alden is logical and compelling and I prefer it.
80 There was no evidence that Byatt was retained to prepare Stonewall's application for the renewal of its POPE authorisation. What Byatt was retained to do was to provide an opinion in relation to one aspect of the POPE authorisation renewal, i.e. the investigation into the construction of the suspended floors to evaluate their respective loading capacities. It was not retained to investigate and evaluate any other aspects of the building which may have been required for the POPE authorisation renewal.
81 In any event, the assumption implicit in the opinions of Messrs Fisher and Barry on this issue is not correct as a matter of law. There was no evidence before me to support the proposition that a certificate relating to a POPE consent must certify the safety of every element, structural or otherwise, of the subject premises. The council did not have power to impose conditions on the grant of a POPE consent which went beyond structural soundness and safety in the event of fire (see Revilla Pty Ltd v Council of the City of Sydney [2003] NSWLEC 343).
82 On this issue, question 5 and its answer in the joint report of the engineering experts (exhibit C90) is relevant:
"Question 5: Does a structural engineering investigation into the nature of construction of suspended floors in an attempt to evaluate their respective loading capacities convey to structural engineers that non-structural features fixed to those floors have been investigated?
It was agreed by all: NO - non-structural features would be investigated only to the extent necessary to determine the loads applied to the suspended floor structure."
83 It is against that background that the "salient features" referred to in Stavar and Makawe need to be considered. As I have already indicated, I consider the retainer between Byatt and Stonewall to be the most important factor but there are other features to be considered on the issue of the existence of a duty and if a duty did exist, its content.
84 In relation to the foreseeability of harm, as Makawe made clear, what is relevant is not actual reliance by a plaintiff on the actions of the putative tortfeasor, but whether it was foreseeable that the plaintiff would be likely to so rely. In this case, the question of foreseeability would relate purely to the structural integrity of the floors, not to the ceilings attached to them. This was because the ceilings were not a structural feature of the hotel.
85 In that regard, question 7 and its answer in the joint report of the engineering experts is instructive:
"Question 7: What is meant by the term "structural alterations" and is the installation of a suspended or direct fixed ceiling considered by structural engineers to be a "structural alteration"?
In relation to the term "structural alterations"
It was agreed by all: The term "structural alteration" refers to an alteration to the structural framework of the building.
In relation to whether the installation of a suspended or direct fixed ceiling is considered by structural engineers to be a "structural alteration":
NO - The installation of a ceiling would not be considered a "structural alteration", but it is an alteration which potentially, by virtue of any change of load, could affect the building structure.
Note: If a heavy fire-rated ceiling was installed, the effect on the building structure should have been investigated at this time."
86 It follows that in circumstances where Byatt's retainer was restricted to examining the structural integrity of the floors, which did not require any investigation of the ceilings, what was foreseeable was injury from the collapse of the floor if that investigation was not carried out properly. What was not foreseeable was the collapse of a ceiling in such circumstances.
87 I have already referred to the nature of the harm which was injury due to the fault of persons other than Byatt. The extent of Byatt's control in that circumstance was minimal. The degree of reliance by the plaintiff on Byatt could only have been in respect of the floors, but not in respect of the ceilings.
88 The conclusion I have reached is that the duty of care owed by Byatt to the plaintiff related to the structural integrity of the floors and that it did not owe any duty to him in relation to the ceilings. It owed to him a duty to exercise reasonable care in the investigation and assessment of the structural integrity of the floors in the hotel.
89 Although the above finding is sufficient to dispose of the plaintiff's claim against Byatt, it is also clear that no breach of duty has been established against it.
90 The plaintiff's case on breach of duty is that having noticed the presence of the old lath and plaster ceiling, Byatt should have taken into account the possibility that the extent of the plaster ceiling was greater than could be observed through the limited openings which had been made. It should then have taken into account the possibility of the old plaster ceiling delaminating and thereby increasing the strain on the suspended part of the first level ceiling. The plaintiff also submitted, albeit somewhat faintly, that Byatt breached its duty to the plaintiff by failing to properly inform itself, either by making inquiries of Mr Creighton or Mr Foo or of the council, as to what activities were being carried out in the hotel. Implicit in that submission is that if Byatt had made such an inquiry, it would have been told about the dancing activities on the second level which would have led to it advising Stonewall to retain a vibration expert.
91 The matters to be taken into account when considering breach are set out in sections 5B and 5C of the Civil Liability Act 2002 (CLA).