The Owners - Strata Plan No 84674 v Pafburn Pty Ltd

he King (1936) 55 CLR 499; [1936] HCA 40 Leichhardt Municipal Council v Montgomery (2007) 230 CLR 22; [2007] HCA 6 Parnaby v Lancaster Canal Co (1839) 11 Ad & E 223; 113 ER 400 Seward v The "Vera Cruz" (1884) 10 App Cas 59 Thomson v Cremin [1953] 2 All ER 1185 Victorian Railways Commissioners v Speed (1928) 40 CLR 434; [1928] HCA 3 Voli v Inglewood Shire Council (1963) 110 CLR 74; [1963] HCA 15 Wicks v State Rail Authority (NSW) (2010) 241 CLR 60; [2010] HCA 22 Wilkinson v Rea Ltd (1941) 1 KB 688 Woodhouse v Fitzgerald (2021) 104 NSWLR 475; [2021] NSWCA 54 Texts Cited: K Barker, P Cane, M Lunney, F Trindade, The Law of Torts in Australia (5th ed, 2012, Oxford UP) J C Campbell, "Contribution, Contributory Negligence and Section 52 of the Trade Practices Act - Part II" (1993) 67 ALJ 177 J Dietrich & I Field "Statutes and Theories of Vicarious Liability" (2019) 43(2) Melb U L Rev 515 P Giliker, Vicarious Liability in Tort: A Comparative Perspective (Cambridge UP, 2010) J Goudkamp & D Nolan, Winfield & Jolowicz on Tort (20th ed, 2020, Thomson Reuters) M Leeming, Common Law, Equity and Statute: A Complex Entangled System (The Federation Press, 2023) M Leeming, The Statutory Foundations of Negligence (The Federation Press, 2019) P Winfield, "Duty in Tortious Negligence" 34(1) Columbia L Rev 41 P Winfield, The Province of the Law of Tort (Camb UP, 1931) Review of the Law of Negligence Report (Commonwealth of Australia, 2002) Category: Principal judgment Parties: The Owners - Strata Plan No 84674 (Appellant) Pafburn Pty Limited (First Respondent) Madarina Pty Limited (Second Respondent) Representation: Counsel: D S Weinberger (Appellant) G A Sirtes SC / A Di Francesco (First and Second Respondents)

Solicitors: Grace Lawyers (Appellant) M&A Lawyers (First and Second Respondents) File Number(s): 2023/00084603 Decision under appeal Court or tribunal: Supreme Court Jurisdiction: Equity Citation: [2023] NSWSC 116 Date of Decision: 23 February 2023 Before: Rees J File Number(s): 2020/340673

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

HEADNOTE [This headnote is not to be read as part of the judgment] The applicant, The Owners - Strata Plan No 84674 ("Owners Corporation"), commenced proceedings in the Equity Division against Pafburn Pty Ltd and Madarina Pty Ltd (the respondents) who were the builder and developer of a building at 197 Walker Street, North Sydney, which has defects. The building is the subject of a residential strata scheme under the Strata Schemes Management Act 2015 (NSW). The duty of care provided under the Design and Building Practitioners Act 2020 (NSW) (Design and Building Act), is a duty that now extends to subsequent owners of the land, including an owners corporation (where the building is a strata development). In the Equity Division, the respondents pleaded that liability should be apportioned amongst nine independent contractors who were concurrent wrongdoers pursuant to Pt 4 of the Civil Liability Act 2002 (NSW). The applicant sought to strike out the proportionate liability defences. The motion was heard and dismissed by Rees J. The applicant sought leave to appeal from this interlocutory judgment. The main issues on appeal were whether: (i) the non-delegable duty created by s 37(1) of the Design and Building Act is a "tort" for the purposes of s 5Q of the Civil Liability Act; and (ii) the proportionate liability provisions in Pt 4 of the Civil Liability Act apply. The Court (Adamson JA and Basten AJA, Ward P agreeing), granting leave and allowing the appeal, held: As to issue (i) - whether breach of non-delegable duty is a "tort" (1) The terms "liability in tort" and "breach of a non-delegable duty" in s 5Q(1) of the Civil Liability Act are not confined to liability for a common law tort and breach of a common law duty. The legislative intention, which is evident from the deeming provision in s 37(3) of the Design and Building Act, is to extend the scope of the common law duty and to create a new cause of action deriving from statute: [10]-[11] (Adamson JA). (2) A defendant is liable for any harm caused by a breach of duty by a party also having a duty to take reasonable care with respect to a plaintiff. Through the concept of non-delegation, that liability is not limited to a failure by the defendant to take reasonable care: [45]-[50] (Basten AJA). Wilkinson v Rea Ltd (1941) 1 KB 688; Voli v Inglewood Shire Council (1963) 110 CLR 74 at 97; [1963] HCA 15, cited. (3) Section 5Q should not be read down because it would undermine the statutory purpose of the provision. The language of s 5Q was intended to address the full scope of the problem of non-delegable duties. The references to "liability in tort" and "an action in tort" were not intended to exclude some circumstances in which non-delegable duties were imposed, but rather reflected an understanding that the concept only arose with respect to actions in tort: [67] (Basten AJA). Gray v Pullen (1864) 122 ER 1091; 5 B&S 970, cited. (4) A claim relying upon s 37 of the Design and Building Act is a claim brought "in tort" because of: the deeming phrase "as if the duty … were established in common law"; to describe the cause of action as one brought in tort is consistent with basic principles; the duty imposed is an extension of an existing duty not a novel one; a cause of action for a breach of a duty imposed by a statute invokes a liability in tort: [70]-[81] (Basten AJA). As to issue (ii) - entitlement to benefit of proportionate liability provisions (5) That s 39 of the Design and Building Act provides that the duty imposed by s 37 may not be delegated is sufficient to exclude Pt 4 of the Civil Liability Act. The builder is vicariously liable for breaches by concurrent wrongdoers pursuant to s 5Q of the Civil Liability Act: [11]-[12] (Adamson JA). (6) The purpose of the proportionate liability provisions is to allow damages for which a defendant would otherwise be liable to be adjusted to reflect the defendants' responsibility for the damage suffered having regard to the responsibilities of concurrent wrongdoers. Where a defendant breaches a non-delegable duty, it is consistent with the purpose of the provision for that wrongdoer to remain liable for the whole of the loss: [13]. The respondents are entitled to a cross-claim against concurrent wrongdoers, but this cannot reduce their liability to the applicant for the whole loss suffered: [14] (Adamson JA). Woodhouse v Fitzgerald (2021) 104 NSWLR 475; [2021] NSWCA 54, cited. (7) The application of the Acts should be approached by seeking to read harmoniously two statutes of the same legislature: [42]-[43]. The Design and Building Act imposes a non-delegable duty, which prevents "outflanking" of the rule that a principal is not liable for a breach of duty by its independent contractor: [50]. The Civil Liability Act equates the liability for breach of a non-delegable duty with vicarious liability. But Pt 4 of the Civil Liability Act does not apply to vicarious liability: [51]-[54] (Basten AJA). (8) The liability owed by the respondents should be treated as a form of vicarious liability which is not subject to any limitation on their liability by apportionment as between them and concurrent wrongdoers under Pt 4 of the Civil Liability Act: [101] (Basten AJA).

JUDGMENT

1. WARD P: I have had the advantage of the reasons of each of Adamson JA and Basten AJA and I can therefore be brief. I agree that, for the reasons given by Basten AJA, leave should be granted. I also agree that the appeal should be allowed and that the orders proposed by Basten AJA should be made. I agree that the fact that the duty of care in s 37 of the Design and Building Practitioners Act 2020 (NSW) is non-delegable (see s 39) excludes by necessary implication the provisions of Part 4 of the Civil Liability Act 2002 (NSW) dealing with proportionate liability; and with the conclusion drawn by each of Adamson JA and Basten AJA in that regard.
2. ADAMSON JA: I have had the benefit of reading the reasons of Basten AJA in draft. I agree with the orders proposed by his Honour and gratefully adopt his Honour's summary of the issues and the submissions made. My reasons for agreeing with the orders proposed by Basten AJA are as follows.
3. The Owners - Strata Plan No 84674 (the applicant) claimed damages against the respondent Pafburn Pty Ltd (the builder) for breach of the duty of care imposed by s 37 of the Design and Building Practitioners Act 2020 (NSW). In its defence, Pafburn Pty Ltd nominated several alleged "concurrent wrongdoers" and relied on Part 4 of the Civil Liability Act 2002 (NSW) which, if applicable, will have the consequence of excluding from the builder's liability for damages any damage for which a concurrent wrongdoer is responsible, whether joined as a defendant or not.
4. The applicant sought to strike out the builder's defence on the basis that Part 4 of the Civil Liability Act did not apply to the duty owed to it by the builder, because the duty was non-delegable. The primary judge rejected the submission and dismissed the notice of motion. The applicant seeks leave to appeal against that dismissal.
5. For the reasons given by Basten AJA, leave to appeal ought be granted. For the reasons which follow, the appeal ought be allowed.
6. Section 37 of the Design and Building Practitioners Act provides: "37 Extension of duty of care (1) A person who carries out construction work has a duty to exercise reasonable care to avoid economic loss caused by defects - (a) in or related to a building for which the work is done, and (b) arising from the construction work. (2) The duty of care is owed to each owner of the land in relation to which the construction work is carried out and to each subsequent owner of the land. (3) A person to whom the duty of care is owed is entitled to damages for the breach of the duty as if the duty were a duty established by the common law. (4) The duty of care is owed to an owner whether or not the construction work was carried out - (a) under a contract or other arrangement entered into with the owner or another person, or (b) otherwise than under a contract or arrangement."

Application for leave to appeal

1. The respondents oppose a grant of leave, but primarily on the basis that the primary judge was correct and the challenge has insufficient merit to warrant a grant of leave. A secondary argument appears to have been that there was an anterior question of fact and law to be decided, namely whether any of the persons listed as independent contractors was a "delegate" of the respondents, and if so which respondent. Arguably the question is misconceived, but in any event, if the defence is not available, that "anterior question" will not need to be decided.
2. The issue sought to be raised by the applicant is of general public importance with respect to the operation of novel legislation conferring rights on an owners corporation with respect to defective construction work, over a period of 10 years prior to the commencement of the legislation. The answer to the question may have significant impact on the conduct of a trial. In those circumstances, a grant of leave to appeal is appropriate.
3. Further, it may be noted that in written submissions opposing a grant of leave, the respondents referred to the decision as involving a "discretionary, interlocutory matter". It was said that the principle of restraint in House v The King [3] should be applied. If correct, that principle would no doubt reduce the likelihood of the applicant's success on any appeal. However, that principle should not be applied. In accordance with the reasoning of the High Court in GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore, [4] the constrained standard only applies where there is a range of answers which can be provided, rather than a binary choice. Even where there is a binary choice and the binary choice involves an evaluative judgment, the "correctness standard" applies. [5]
4. This was not a case involving a discretion with a possible range of outcomes: either the defence was struck out, or it was not. It was also not a case which involved an evaluative judgment: the question whether to strike out the defence depended on the proper construction of the relevant statutory provisions. Accordingly, there can be no doubt that the correctness standard applies.

Statutory scheme

1. The relevant operative provision in the Design and Building Act is s 37, which provides as follows: 37 Extension of duty of care (1) A person who carries out construction work has a duty to exercise reasonable care to avoid economic loss caused by defects - (a) in or related to a building for which the work is done, and (b) arising from the construction work. (2) The duty of care is owed to each owner of the land in relation to which the construction work is carried out and to each subsequent owner of the land. (3) A person to whom the duty of care is owed is entitled to damages for the breach of the duty as if the duty were a duty established by the common law. (4) The duty of care is owed to an owner whether or not the construction work was carried out - (a) under a contract or other arrangement entered into with the owner or another person, or (b) otherwise than under a contract or arrangement.
2. The term "construction work" is broadly defined in s 36 to mean any of the following: (a) building work, (b) the preparation of regulated designs and other designs for building work, (c) the manufacture or supply of a building product used for building work, (d) supervising, coordinating, project managing or otherwise having substantive control over the carrying out of any work referred to in paragraph (a), (b) or (c).
3. The provisions in Pt 4 were given retrospective effect for a period of up to ten years, pursuant to Sch 1, cl 5 which provides: 5 Application of duty of care provisions to existing buildings and contracts and arrangements (1) Part 4 of this Act extends to construction work carried out before the commencement of section 37 as if the duty of care under that Part was owed by the person who carried out the construction work to the owner of the land and to subsequent owners when the construction work was carried out. (2) Subclause (1) only applies to economic loss caused by a breach of the duty of care extended under that subclause if - (a) the loss first became apparent within the 10 years immediately before the commencement of section 37, or (b) the loss first becomes apparent on or after the commencement of that section. (3) Part 4 of the Act as extended by subclause (1) applies regardless of whether an action for breach of a common law duty of care has commenced before the commencement of section 37 and may be taken into account in those proceedings unless the court considers that it would not be in the interests of justice to do so. (4) Section 40 extends to a contract, agreement or stipulation relating to the construction work whenever made. (5) For the purposes of this clause, a loss becomes apparent when an owner entitled to the benefit of the duty of care under Part 4 of this Act first becomes aware (or ought reasonably to have become aware) of the loss. (6) Words and expressions used in this clause have the same meaning as in Part 4 of this Act.

Issues on appeal

1. The primary judge identified the Owners Corporation's case as depending upon the combined effects of s 39 of the Design and Building Act and s 5Q and s 39(a) of the Civil Liability Act. Those provisions, it was submitted, precluded the defendants from utilising the proportionate liability provisions where the statutory duty was described as "non-delegable". [6] The contrary submission of the respondents, which was successful in the Court below, was that the statutory duty created by s 37(1) of the Design and Building Act is not a "tort" for the purposes of s 5Q, with the result that there was no conversion of the liability of the respondents into a form of "vicarious liability", without which s 39(a) of the Civil Liability Act was not engaged. The critical step in the respondents' case was that a "tort" was a cause of action arising under the general law, and did not include statute, even if the statute operated by creating a "duty of care".
2. For reasons explained below, the respondents' construction should not be accepted. That course of reasoning, however, involves a potentially arid consideration of what is meant by a term derived from the general law referring to a "non-delegable duty", and a distinction between that and "vicarious liability". In circumstances where it has been said (with some justification) that a "non-delegable duty" is a misnomer, because the possibility of delegation is inappropriate, and where the term "vicarious liability" is a misnomer because there is no question of the liability of the employer standing in for the liability of the employee, it is desirable not to engage too closely with the precise meanings of those terms, to the extent that it is possible to avoid doing so.
3. There is an alternative approach which turns on the uncontroversial principle of statutory interpretation that seeks to read harmoniously two statutes of the same legislature. The basic proposition is that for s 36 of the Civil Liability Act to be construed as preventing a defendant who is a concurrent wrongdoer being liable for damages for which another concurrent wrongdoer is liable, is to render the imposition of a non-delegable duty on the former incoherent. That conclusion, it may be accepted, requires an understanding of the concept of a "non-delegable duty", but it does not require engagement with the concept of a "tort", as the term is used in s 5Q of the Civil Liability Act.

A non-delegable duty

1. The nature of the duty under s 37(1) of the Design and Building Act requires no analysis for present purposes beyond noting that it is a duty imposed on a person who carries out construction work to exercise reasonable care to avoid economic loss caused by defects in the building. The duty is owed to each owner of the land, including owners subsequent to the owner for whom the construction work was carried out: s 37(2). Section 39 (set out at [28] above) states that the person who owes the duty "is not entitled to delegate that duty".
2. The concept of non-delegation has long been used in applying the common law. As observed above, it is a term used to indicate that a principal who owes a duty to a third party, but engages an independent contractor to carry out the work, will be vicariously liable for a breach of duty by the independent contractor.
3. In Wilkinson v Rea Limited [7] Luxmoore LJ stated that the duty of an invitor to an invitee cannot be "escaped by delegating its performance to an independent contractor". Voli v Inglewood Shire Council [8] involved a claim against the Council as occupier and owner of a structure used for entertainment, which was found liable to a person who was injured when a stage in a hall collapsed. In Voli, Windeyer J referred to the judgment of Luxmoore LJ, approved by the House of Lords in Thomson v Cremin, [9] and identified the question as being, "Is the case one of those in which there is vicarious liability for the fault of an independent contractor?".
4. In The Commonwealth v Introvigne, [10] addressing the liability of a school authority in negligence for an injury suffered by a pupil attending the school, Mason J stated that the liability was "not a purely vicarious liability" and continued: "A school authority owes to its pupils a duty to ensure that reasonable care is taken of them whilst they are on the school premises during hours when the school is open for attendance." After referring to the reasons of Lord Reid in Carmarthenshire County Council v Lewis, [11] similarly dealing with the liability of a school authority for an injury to a school pupil, Mason J observed: [12] "The decision recognises that there is a liability on the part of the school authority for its failure to take reasonable steps to prevent the escape of the child on to the highway. It proceeds on the footing that the duty is not discharged by merely appointing competent teaching staff and leaving it to the staff to take appropriate steps for the care of the children. It is a duty to ensure that reasonable steps are taken for the safety of the children, a duty the performance of which cannot be delegated."

Application of s 5Q of the Civil Liability Act

1. The argument accepted by the primary judge approached the matter differently. It assumed that the exclusion of vicarious liability from the operation of Pt 4 of the Civil Liability Act, pursuant to s 39(a), turned on the operation of s 5Q, converting liability for a breach of a non-delegable duty into a vicarious liability by a deeming provision, "as if the liability were the vicarious liability of the defendant". However, so the argument ran, s 5Q was not engaged because the statutory duty imposed under the Design and Building Act was not a liability "in tort" but a liability arising under the statute.
2. Before addressing the substance of that approach, it is convenient to address the effect of "application" provisions in each Act. Thus, s 41(3) of the Design and Building Act, contained in Pt 4, states that "this Part is subject to the Civil Liability Act 2002". The primary judge noted that that provision had been considered by Stevenson J in Boulus Constructions Pty Ltd v Warrumbungle Shire Council (No 2), [14] in the following terms: "64 The Act is expressed to be subject to the Civil Liability Act. [15] The proportionate liability regime under Pt 4 of the Civil Liability Act thus applies to actions for breach of the s 37 statutory duty. This enables persons in the position of [the defendants] to identify concurrent wrongdoers and seek to have their liability for breach of the statutory duty limited under s 35 of the Civil Liability Act."
3. Having set out that passage, the primary judge continued: "29 That is, the extensive statutory duty is potentially ameliorated by the ability of defendants to call in aid the proportionate liability provisions of the [Civil Liability Act]."
4. Nevertheless, those statements assume, rather than explain, the manner in which Pt 4 of the Civil Liability Act is engaged. To note that Pt 4 of the Design and Building Act is "subject to" the Civil Liability Act says nothing unless the latter is engaged in circumstances to which the former applies.
5. The primary judge appears to have found support for her conclusion in the application provision in Pt 4 of the Civil Liability Act, namely s 34(3A), set out at [38] above. That provision excludes from the operation of the proportionate liability provisions a claim for damages for breach of a statutory warranty arising under Pt 2C of the Home Building Act 1989 (NSW). The judge thought it "[n]oteworthy" that s 34(3A) excluded such a claim, but did not exclude a claim for breach of statutory duty under the Design and Building Act. She continued: "27 … When paired with section 41(3) of the [Design and Building Act], which makes Part 4 of the [Design and Building Act] 'subject to the Civil Liability Act 2002' without limitation, it is clear that the proportionate liability provisions of the [Civil Liability Act] apply to a claim for economic loss in an action for damages arising from a failure to take reasonable care as required by section 37(1) of the [Design and Building Act], whether that claim is an action 'in contract, tort or otherwise'."

Was the claim brought in tort?

1. There are five, not entirely independent, reasons for thinking that a claim relying upon s 37 of the Design and Building Act is a claim "in tort" for the purposes of s 5Q of the Civil Liability Act. The first is that s 37(3) provides that a person to whom the duty of care is owed is entitled to damages for breach of the duty "as if the duty were a duty established by the common law". According to the respondents, the deeming phrase, "as if", demonstrates that this is not a common law duty; were it otherwise, the deeming would not be necessary. Accepting the premise, the conclusion does not follow. That is, assuming that it is not in fact a common law duty, the statute requires that it be treated as such: the deeming cannot be ignored. There is nothing in s 37 which restricts the operation of the deeming, nor was any necessary implied restriction identified by the respondents. To give effect to the deeming, the claim must be treated as one brought under the common law for all purposes, including in addressing the application of the Civil Liability Act. The fact that the claim may also be said to be brought "under statute" within s 5A(1), so as to engage Pt 1A of the Civil Liability Act, does not affect the deeming provision. If the cause of action created by Pt 4 of the Design and Building Act is a claim "in tort", it is a claim arising under the common law.
2. Secondly, to describe the cause of action as one brought in tort accords with basic principles. The meaning of "tort" can only be usefully addressed by understanding the function it plays within the general law. As the authors of Winfield & Jolowicz on Tort explain, it is best to begin with a general description, rather than a definition. [23] They conclude their initial description by stating: "It is perhaps unkind to call tort the dustbin of the law of obligations, but it is certainly the great residuary category. No one theory explains the whole of the law."
3. In attempting a definition, Winfield stated: [24] "Tortious liability arises from the breach of a duty primarily fixed by law; this duty is towards persons generally and its breach is redressable by an action for unliquidated damages."
4. It is appropriate to talk of "tortious liability" rather than a "tort" because there is no cause of action unless the breach of duty results in harm to an individual to whom the duty is owed. The primary function of the categorisation is to distinguish tortious liability from criminal liability and from other categories within the civil law of obligations, being primarily liability arising from a breach of contract or bailment, which depend upon an agreement between the parties, or at least the consent of the defendant, [25] and breach of trust. [26] Tortious liability does not cease to be tortious liability because the content of the duty, or the circumstances in which the liability may arise, is defined or controlled or regulated by statute. That has been acknowledged since in a plethora of cases, some of which were discussed by J C Campbell 20 years ago. [27] In Downs v Williams, [28] concerning the liability of the State for breach of the Factories, Shops and Industries Act 1962 (NSW) Windeyer J stated: "Every Act of Parliament alters the law to some degree, unless it is merely a re-enactment of an existing statute as in a consolidation of statute law, or is truly declaratory of common law. And the proposition that Lord Campbell's Act did not make new law will not bear examination against the light of authoritative pronouncements. What it did was to create a cause of action which Lord Blackburn described as 'new in its species, new in its quality, new in its principle, in every way new': Seward v. The 'Vera Cruz' [29] ; see too Victorian Railways Commissioners v. Speed. [30] This new tort became part of the general law of torts in New South Wales in 1847 when, by 11 Vict. No. 32, the provisions of Lord Campbell's Act were enacted by the local legislature. That was ten years before the Act of 1857, the first of the series of statutes by which the Crown in New South Wales became liable in tort. The new rights created by Lord Campbell's Act were a part of the existing law of torts to which the Crown became subject."

Two other cases

1. First, it should be noted that this conclusion is consistent with the reasoning in Woodhouse v Fitzgerald, [52] a case dealing with liability of the owners of land on which a fire broke out, following a back-burn undertaken by the Rural Fire Service (RFS), for damage to the property of a neighbour, Mr Woodhouse. In considering the vicarious liability of the owners, on the assumption that there had been negligence, the Court held that the owners would have remained liable for the full amount of the damages, and not merely for their part based on an apportionment under Pt 4 of the Civil Liability Act. In the course of reaching that conclusion, the following reasoning appears: "98 The owners' duty being non-delegable, Mr Woodhouse challenged the apportionment by the trial judge on the basis that the owners were responsible for any breach by independent contractors such as members of the RFS. As Gleeson CJ noted in Leichhardt Municipal Council v Montgomery a non-delegable duty 'enables a plaintiff to outflank the general principle that a defendant is not vicariously responsible for the negligence of an independent contractor.' Section 5Q of the Civil Liability Act provides that the extent of liability in tort for breach of a non-delegable duty 'is to be determined as if the liability were the vicarious liability of the defendant for the negligence of the person in connection with the performance of the work or task'. 99 It is not necessary for present purposes to determine whether s 5Q varies the effect of the general law with respect to duties described as 'non-delegable'. The answer to the question may depend in some circumstances on the proper construction of a statutory scheme which gives rise to such a duty." [Footnote reference omitted.]
2. The primary judge found that this reasoning was not applicable, stating: "51 Obiter, Basten JA left open the possibility that a statute may give rise to a non-delegable duty under section 5Q: Woodhouse v Fitzgerald at [99]. That is certainly available as a matter of language. However, having regard to the mischief to which section 5Q was directed, I consider that section 5Q does not apply where a duty is non-delegable as a consequence of statute."
3. On the basis that the Court in Woodhouse found there was no lack of reasonable care, [53] (and the alternative finding that, if it were necessary, the Court was affirmatively satisfied that reasonable care had been taken [54] ) it could be said that the remaining discussion in Woodhouse was obiter. However, where an intermediate court of appeal deems it appropriate to address all of the issues raised on an appeal, in accordance with the practice discussed in Boensch v Pascoe, [55] a trial judge should be cautious in deciding not to follow a legal principle stated by this Court. Further, the point made in Woodhouse at [99] concerned a question as to whether s 5Q varied the effect of the general law, or whether, as described in the Ipp Report, it merely reflected an established understanding of the general law. To the extent that the answer was said in some circumstances to depend upon the proper construction of a statutory scheme, that statement assumed that a non-delegable duty conferred by statute would be subject to the operation of s 5Q, subject to consideration of the interrelationship between the two statutes. For the reasons discussed above, the assumption was correct.

Conclusions

1. Whether as a matter of general law principle, or by operation of s 5Q, the liability of the respondents in the present case should be treated as a form of vicarious liability which is not subject to any limitation on their liability by apportionment as between them and concurrent wrongdoers under Pt 4 of the Civil Liability Act. There are two available pathways, but they reach the same conclusion.
2. Accordingly, the Court should make the following orders: 1. Grant the appellant leave to appeal from the judgment in the Equity Division given on 23 February 2023. 2. Allow the appeal and set aside the orders in the Equity Division. 3. In place thereof: 1. pursuant to the amended notice of motion filed on behalf of the plaintiff on 15 December 2022, strike out paragraphs 20-24, 27-29A of the first amended technology and construction list response filed by the defendants on 21 September 2022; 2. order that the defendants pay the plaintiff's costs of the motion. 1. Order that the respondents pay the appellant's costs of the proceedings in this Court.

Endnotes

1. The Owners - Strata Plan No 84674 v Pafburn Pty Ltd [2023] NSWSC 116
2. Supreme Court Act 1970 (NSW), s 101(2)(e).
3. (1936) 55 CLR 499 at 504-5; [1936] HCA 40.
4. [2023] HCA 32.
5. GLJ at [16] (Kiefel CJ, Gageler and Jagot JJ).
6. Primary judgment at [13].
7. (1941) 1 KB 688 at 702.
8. (1963) 110 CLR 74 at 97; [1963] HCA 15.
9. [1953] 2 All ER 1185.
10. (1982) 150 CLR 258 at 269; [1982] HCA 40.
11. [1955] AC 549 at 563.
12. Introvigne at pp 269-270.
13. (2007) 230 CLR 22; [2007] HCA 6.
14. [2022] NSWSC 1368.
15. Section 41(3) of the Act.
16. Primary judgment at [33].
17. P Giliker, Vicarious Liability in Tort: A Comparative Perspective (2010), Cambridge UP, p 1.
18. Review of the Law of Negligence Report (Commonwealth of Australia, 2002) ("Ipp Report") at par 11.12.
19. Ipp Report, par 11.12.
20. (1861) 158 ER 201; 6 H&N 488 (Pollock CB, Martin B and Wilde B).
21. (1864) 122 ER 1091; 5 B&S 970.
22. Gray at 978.
23. J Goudkamp & D Nolan, Winfield & Jolowicz on Tort (20th ed, 2020, Thomson Reuters) [1-002].
24. Winfield & Jolowicz on Tort at [1-003]; see also P Winfield, The Province of the Law of Tort (Camb UP, 1931), p 32.
25. Winfield & Jolowicz on Tort at [1-005].
26. K Barker, P Cane, M Lunney, F Trindade, The Law of Torts in Australia (5th ed, 2012, Oxford UP), Ch 1, pp 4, 10.
27. J C Campbell, "Contribution, Contributory Negligence and Section 52 of the Trade Practices Act - Part II" (1993) 67 ALJ 177.
28. (1971) 126 CLR 61 at 84; [1971] HCA 45.
29. (1884) 10 App Cas 59, at pp 70-71.
30. (1928) 40 CLR 434, at pp 440-441, 445; [1928] HCA 3.
31. M Leeming, The Statutory Foundations of Negligence (The Federation Press, 2019) at p 16.
32. The heading is not part of the statute, but may be considered as an extrinsic aid to construing the provision: Interpretation Act 1987 (NSW), ss 34(1) and 35(2).
33. (1999) 197 CLR 1; [1999] HCA 6 at [48].

Amendments 03 June 2024 - Par 33 - insert "s" at the end of respondent Par 37 - delete "and" after "removed" Par 47 - remove open quote before "the duty" and insert before "escaped" FN 7 - insert "at 702" at end Par 65 - change "were" in quote to "are" Par 69 - change "perennial" in quoted passage to "navigable" Par 70 - insert full stop at end of paragraph Par 73 - change "every was" to "every way" in quoted passage FN 23 - end of footnote change "001" to "002" Par 75 - change "respondent's" to respondents' Par 77 - change "AusTrust" to "Austrust" Par 79 - change "find an action" to "found a tort" in quoted passage Par 87 - delete coma after "note" Par 92 - change "Vicarious Liability Act" to read "Law Reform (Vicarious Liability) Act" Par 93 - change "a holder" to read "the holder" Par 94 - delete "the" before "purposes" 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. Decision last updated: 03 June 2024