TWEED SHIRE COUNCIL v HANCOMATIC MUSIC PTY LTD & ANOR HANCOMATIC MUSIC PTY LTD v LETITIA HANCOCK HANCOMATIC MUSIC PTY LTD v ANTHONY RICHARD HANCOCKHANCOMATIC MUSIC PTY LTD v LUKE HANCOCK bnf ANTHONY HANCOCK

TWEED SHIRE COUNCIL v HANCOMATIC MUSIC PTY LTD & ANOR HANCOMATIC MUSIC PTY LTD v LETITIA HANCOCK HANCOMATIC MUSIC PTY LTD v ANTHONY RICHARD HANCOCKHANCOMATIC MUSIC PTY LTD v LUKE HANCOCK bnf ANTHONY HANCOCK - [2007] NSWCA 350 - NSWCA 2007 case summary — Zoe

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1 THE COURT: These appeals arise from a judgment of his Honour Judge Phegan in which he awarded three members of the Hancock family, Anthony and Letitia and their son Luke, damages of $340,522.77, $473,558.88 and $55,400 respectively for psychiatric injury consequent upon the death of their son and brother, Ryan Aragon Hancock. 2 At issue are questions of duty of care and breach touching the liability of Hancomatic Music Pty Ltd ("Hancomatic") and the Tweed Shire Council ("the Council") with respect to the type of glass installed in certain premises at the time of the accident. Hancomatic was the owner of the premises and it alone was sued by the plaintiffs. It was awarded a full indemnity from the Council on the grounds of either a breach of duty to Hancomatic or as a joint tortfeasor that would, if sued by the plaintiffs, have been liable to them. Background and issues 3 At about 4pm on 3 March 1999 Ryan Hancock, aged six years, ran into a glass sliding door leading into the motel reception area at premises known as the Town Motel and Eatery in Wharf Street, Murwillumbah. The glass shattered severely lacerating his neck and severing his carotid and jugular blood vessels. He died approximately 35 minutes later. The glass in the door was annealed glass. 4 Ryan's father and mother, Anthony and Letitia Hancock, were close by when the accident happened. They ran to Ryan's aid. His brother, Luke, who was then aged 7, was running behind him. Each plaintiff brought proceedings against the owner of the premises, Hancomatic, seeking to recover damages in relation to the injuries they claim to have suffered as a consequence of the circumstances in which Ryan died. They asserted that various duties of care had been breached by Hancomatic because annealed glass, rather than safety glass, had been used in the reception area door. 5 It was common ground at trial that the glass door had been constructed when Hancomatic redeveloped the Wharf Street premises in the period 1971 - 1973. The redevelopment involved refurbishing an existing building to create a shopping complex fronting onto Wharf Street to the south. The shopping area included the motel reception area. The other aspect involved constructing motel units at the north end of the property. 6 During the period of the redevelopment, the statutory regime relating to the characteristics of glass to be used in glass doors in commercial premises significantly altered. In the early 1970s building regulation was controlled by Pt XI of the Local Government Act 1919 (ss304-319) and Ordinance No 71. (See generally Wilcox, The Law of Land Development in New South Wales (1967) Law Book Company at Chapters11-14. Ordinance 71, cl 44C relevantly stipulated that safety class shall be used in … every glass door" (cl 44C(b)(i)). The clause was inserted into Ordinance 71 (Building) by Government Gazette No 1 7/1/72, taking effect from 1 July 1972. 7 Further, Australian Standard AS1288 (Installation of Glass in Buildings), which provided for limits to areas which could be glazed with annealed glass, was published in 1973. The 1973 Australian Standard, AS1288 was given statutory force by regulations made under the Local Government Act 1919. According to the expert evidence at trial none of the sliding doors at the Wharf Street premises, including in the reception area sliding door, was within the maximum permitted area in which annealed glass could be used (Red 52K. References to "Red" relate to Red Book in 40021/2006.). 8 The plaintiffs' further amended statements of claim pleaded that the premises, an expression defined by the pleading to include all the development on the Wharf Street site, had been completed in or after July 1972. There were numerous particulars of Hancomatic's alleged breach of duty, one of which was that Hancomatic had failed to construct the motel reception area in accordance with cl 44C. This allegation against Hancomatic as builder raises issues that include:

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• whether Hancomatic was liable by virtue of some non-delegable duty of care or vicariously for any fault on the part of its building contractor; • whether the doors were installed after 1 July 1972 (the date that cl 44C commenced); • whether negligence was established by mere non-compliance with cl 44C or otherwise on the evidence. 9 The plaintiffs' respective verdicts did not turn upon findings of breach against Hancomatic as builder or as the principal vicariously liable for the negligent conduct of its builder. These bases of liability are, however, raised by way of notice of contention filed on behalf of the plaintiffs. 10 The plaintiffs succeeded in the District Court because the judge found that Hancomatic had negligently failed to conduct a safety audit that would have revealed that the glass in the sliding door was dangerous to the public, leading to its replacement with safety glass. A "duty … to make appropriate inquiries and conduct a safety audit" was found to have arisen when Hancomatic undertook substantial renovations in 1997, if not before (Red 56). This basis of claim is hereafter referred to as the "safety audit breach". These findings of duty and breach against Hancomatic were not based on any conclusion that the glass was dangerous and/or non-compliant with statutory requirements when first installed. 11 It was only for the purpose of Hancomatic's Cross Claim against the Council that the judge found that the door was installed after 1 July 1972 in breach of cl 44C of Ordinance 71. 12 Hancomatic challenges the finding that it had a duty of care that extended to a safety audit as well as the finding of breach. 13 Hancomatic denied that it had been negligent in any respect. 14 In defence to the allegation that the premises had been completed in or after July 1972, Hancomatic pleaded that it had acquired four shops in Wharf Street, Murwillumbah in or about November 1968 and that, on or about 26 August 1971, Tweed Shire Council had granted development and building approval to it to alter the shops, inter alia, by partially demolishing one and constructing an office/reception area and driveway. Hancomatic asserted that the alterations were carried out after August 1971 and that the door into which Ryan ran was at the entrance of the office and was constructed as part of the alterations completed after August 1971. The defence did not specify when Hancomatic said the door was constructed. 15 Hancomatic filed a cross-claim against Tweed Shire Council in which, for the limited purposes of the cross-claim, it repeated the allegations in paragraphs 1 to 8 of the further amended statement of claim, which included the allegation that the premises were constructed after 1 July 1972. The cross-claim also asserted that the Council approved plans which included the construction of the motel reception area in August 1971. Hancomatic's case against the Council was based on the premise that the motel reception area was constructed after cl 44C or AS 1288-1973 came into effect and that the Council had been negligent in failing to require that work to comply with those provisions. 16 Hancomatic also cross-claimed against AR Hancock & Co Pty Ltd seeking to recover indemnity and/or contribution in the event it was held liable to the plaintffs. That cross-claim was settled in the course of the trial on terms which were not disclosed. 17 These pleadings and the conduct of the parties at trial in calling evidence directed to the issue of when the motel reception area was constructed with the annealed glass doors show that there is no injustice in addressing the matter raised in the notice of contention. The plaintiffs had squarely pleaded that the premises were completed "in or after July 1972", an allegation denied by Hancomatic in its Defence. 18 In this Court most of the attention was directed to the notice of contention, especially the matter of dating the relevant building work. 19 It must be recorded at the outset that Hancomatic was not sued by the plaintiffs on the basis of a duty of care as occupier of the premises. Hancomatic was not the occupier at the time of the accident. The occupier was a company owned and controlled by two of the plaintiffs, Mr and Mrs Hancock. That company, A R Hancock Pty Ltd, had become the lessee of the premises in 1997 from Hancomatic in circumstances set out below. 20 Had the plaintiffs claimed against A R Hancock Pty Ltd the claim could and would have focussed upon what ought reasonably to have been done in all the circumstances on or before 3 March 1999. Such a claim could not have been defeated by the defendant pointing to the dangerous state of the premises having been created by a third party prior to the commencement of its lease in 1997. 21 But such a claim would have involved exploring the fault of the lessee, a company owned and controlled by the plaintiffs Anthony Hancock and Letitia Hancock. Leaving aside the obviously distressing nature of any such inquiry to Ryan's grief-stricken parents, the claim would undoubtedly have thrown up issues of contributory negligence not to mention a potential claim for contribution (cf Andar Transport Pty Ltd v Brambles Ltd (2004) 217 CLR 424). 22 Instead, the plaintiffs brought a different claim against a different defendant. The defendant, Hancomatic, was the owner and the lessor of the premises at the time of the accident. This, however, was not the entire basis of the claim in either of its manifestations. More to the point, Hancomatic's status as lessor at the time of the accident meant that it was not a candidate for liability based upon occupier's liability absent some finding that the lease arrangement unusually left Hancomatic with sufficient legal control to render it a joint occupier with its lessee (see Wheat v E Lacon & Co Ltd [1966] AC 552, Balesfire Pty Ltd t/as Gutter Shop v Adams [2006] NSWCA 112 at [47]). 23 There was no dispute that the motel units were constructed in 1973. However, a substantial issue at trial was whether the motel reception area was constructed before or after 1 July 1972. Without, at this stage, descending into specifics, we note that the evidence concerning when the motel reception area was constructed was circumstantial. The degree to which it was circumstantial can be demonstrated by the fact that in resisting the Hancocks' claim, Hancomatic could point to evidence supporting the proposition that the motel reception area was built before 1 July 1972, while in pursuing its claim against the Council it could cogently argue that it was constructed after that date.

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These appeals 24 There are three appeals brought by the Council, relating to the verdicts recovered by Mr Hancock (40021/06), Mrs Hancock (40022/06) and Luke Hancock by his next friend (40230/06). In each appeal the Council seeks to have the verdict against it on Hancomatic's Cross Claim set aside and a verdict entered in its favour. The Council challenges the judge's conclusions on Hancomatic's Cross Claim. It also contends that the plaintiffs should have failed in their respective claims against Hancomatic. 25 Hancomatic has brought appeals against Mrs Hancock (40030/06), Mr Hancock (40031/06) and Luke Hancock by his next friend (40032/06). In each appeal Hancomatic seeks to set aside the verdict against it on the plaintiff's claim and to have a verdict entered in its favour. 26 The plaintiffs support the reasoning of the primary judge, but they also propound by way of notice of contention an alternative basis of Hancomatic's liability. The alternative claim is that Hancomatic is liable because the door was installed by or on its behalf after 1 July 1972, in breach of cl 44C and therefore (it is said) negligently. 27 Since Luke Hancock's verdict was $55,400 it is necessary and appropriate for leave to be granted in the two appeals in which he is a respondent. The facts in detail 28 The following statement of the case is substantially taken from the primary judge's reasons. However, no doubt because of the way his Honour understood the issues, some of the critical factual findings appeared in sections of the judgment in which his Honour dealt with the plaintiffs' case against Hancomatic and some in the section dealing with Hancomatic's cross-claim. We have sought to consolidate the critical factual findings while identifying those parts of the judgment in which they originally appeared. We have also included references to aspects of the evidence we understand to have been uncontroversial and which assist in understanding aspects of his Honour's reasons. In a later section of these reasons, we deal in more detail with aspects of the evidence with which his Honour did not deal, but which we have considered in the course of exercising our rehearing function. 29 Hancomatic was formed to conduct a business to be run by Howard Hancock, Anthony Hancock's father, involving the supply and maintenance of jukeboxes, pinball machines and pool tables (Red 34M-N). 30 Hancomatic purchased the Wharf Street premises in November 1968. At the time of purchase, it consisted of four adjacent shops fronting onto Wharf Street. Wharf Street faced south. The Golden Spot Café, the shop at the western end of the complex, consisted of a snack bar and a take-away food outlet. There was an amusement parlour behind the snack bar in which machines owned by Hancomatic were installed. Behind the amusement parlour was a storage area where Hancomatic kept other machines available for rental. A real estate agency, Les Noble Real Estate, occupied the easternmost section of the premises (Red 34S-X).

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35 Howard Hancock sought Council permission to carry out interim development in respect of a proposed development of shops and a motel on 8 March 1971 (Blue 1/5). 36 On 15 March 1971, the Shire Clerk wrote to Mr Hancock giving approval in principle to the work subject to compliance with building regulations (Blue 1/7). At that time Mr Ray Abernethy, an architect, prepared a set of "working drawings" dated April 1971 (the "Abernethy plans"). 37 We interpolate that Mr Abernethy submitted the plans to the Council (marked to the attention of Gary Smith) under cover of an undated handwritten note with the request that Mr Smith "have a look at them and let me know what you think" (Blue 1/9). It was common ground on appeal that the plans which accompanied Mr Abernethy's note were dated April 1971 and comprised at least two sheets, one (WD 1) being the Foundation and Drainage Plan, and the other (WD 2) being the Ground Floor Plan (Blue 1/56-57). We shall return to the detail of those plans later in these reasons. 38 Mr Abernethy lodged a building application for the motel and shopping complex on 10 June 1971. On 18 June 1971 the application was assigned number 212/71. 39 On 9 August 1971, Mr Hancock wrote to the Council asking for advice as to what alterations had to be made to the "submitted plans to suit Council requirements for a motel and shopping complex in Wharf Street Murwillumbah" (Blue 1/13). On 16 August 1971, the Shire Clerk wrote to Mr Hancock advising that the plans as submitted did not comply with the requirements of Ordinance 71 relating to the distance of the building from the side boundary (Blue 1/14). 40 On 20 August 1971, Mr Abernethy wrote to the Council advising that Mr Hancock had decided he would prefer to withdraw the application on the motel section of the development with a view to seeking approval at a later date but that in the meantime the application concerning the shopping complex would proceed. We note that that letter bears a handwritten notation "plans for shopping complex only approved (signature) 31/8/71" (Blue 1/15). 41 The primary judge said the Council's Building Register recorded Council approval to the development of "Motel + Shops" on "26 June 1971", (Red 63) but we note this appears to be a typographical error (or a misreading of the Register - exhibit XD3). It was common ground, and his Honour so found, that the approval was given on 26 August 1971 (Red 64). That date appears on the copy of the Building Register which became exhibit XD3 at trial and in the section of the building application form marked "For Council use only", where the following appears: "Approved 26-8-71. This approval is for shopping complex only …" (Blue 2/146)

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It is convenient to record, at this juncture, that the Council submitted that the primary judge's acceptance of Mr Hurst's denial that he participated in the renovation of the motel reception area was contrary to compelling inferences and that this Court should find that, more probably than not, Mr Hurst renovated the motel reception area between 1971 and early 1972. 47 In May 1972, a second set of drawings, on this occasion prepared by Howard Hancock's brother, Robert Hancock (the "Hancock drawings"), was submitted to the Council. The primary judge found that the layout of the shopping complex "closely resembled" the layout in the Abernethy drawings, but the motel section "had been redrawn in order to meet the earlier objections raised by the Council". The endorsements on the Hancock drawings (102/6 and 102/7) were signed off with the initials "DRB", which Mr Buckley identified as his (Red 36). Robert Hancock was not called at the trial. There was no explanation for his absence, but no Jones v Dunkel point was taken in this respect. 48 Mr Buckley joined the Council in May 1972. He gave evidence that the plans for the motel section were submitted to him for approval and bore endorsements in his handwriting. The primary judge inferred from the fact that Mr Lindsay (with whom Hancomatic entered into a building contract dated 7 June 1973) was not approached until late 1972, and the building contract with him was not signed until 7 June 1973, that the plans for the motel section were approved sometime after 1 July 1972 (Red 64V). There was no evidence of any communication of the approval of the motel section to Hancomatic, save for the endorsements which appeared on Hancock drawings 102/6 and 102/7 (Red 68). It is convenient to record at this stage, although the primary judge did not make use of this evidence, that Mr Buckley first visited the premises on 8 July 1973 to inspect the steel footings for the slab (Blue 2/182). 49 The primary judge noted that there was no record in the Council's Building Register of any application by Mr Hancock or Hancomatic subsequent to that lodged in June 1971 (Red 63-64). His Honour concluded that in the circumstances of the approval of the shopping complex only, he could not be satisfied that the Register could be relied upon as the only source of evidence with regard to the approval process. He held that even if formally the "development" was "approved" as recorded in the Register, subsequent events were sufficient to "establish a basis upon which the Council's role in the motel development, as distinct from the renovation of the shops, can be regarded as part of a separate and subsequent process which … extended beyond, and … commenced after, 1 July 1972" (Red 64). 50 Hancomatic called Mr Lindsay. The specifications attached to the contract included copies of Hancock drawings numbered 102/3 and 102/4 which the primary judge described as "the shopping complex including the motel reception area", as well as 102/6 and 102/7, which the primary judge described as the "motel section". However, his Honour noted, the description of works in the contract referred only to "five units" and to drawings numbered 102/6, 102/7 and 102/8 (Red 37). In fact, the contract specifies the work to be performed as: Completion of ten units to detail no 102/6 102/7 102/8 and specifications approved by Tweed Shire Council. (Blue 2/160)

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74 The primary judge held that Hancomatic did not give consideration from the time of the motel's construction to matters of public safety, notwithstanding the continuing use of premises as a motel and restaurant. He found that, "most importantly" in 1997 when extensive renovations and repairs were undertaken, Hancomatic failed to include any safety audit for the purpose of addressing structural features which "had long been recognised as a prospective danger to the public". He held that Hancomatic's failure to conduct such an audit was a breach of its duty of care which resulted in the death of Ryan Hancock (Red 57). 75 The primary judge also concluded that the 1998 vandalism incident should have been sufficient to raise in Hancomatic's mind a concern about whether glass on parts of the premises was sufficiently resilient to impact to avoid exposing other persons to the risk of serious injury and that an "appropriate response" would have been sufficient to avert the accident. On the assumption, which he did not explore, that Hancomatic's duty as landlord persisted during the lease to AR Hancock & Co Pty Ltd, he concluded that the failure to respond to the 1998 incident was an additional ground of liability (Red 57). 76 The primary judge concluded that there was no evidence that the cost of replacing the annealed glass in 1997 was disproportionate to the risk of serious personal injury or death from such glass (Red 61M). He also held that the necessary causal connection between the breach of duty on the defendant's part and the injury was established in that the installation of any form of safety glass would have averted injury of the kind suffered by Ryan Hancock which caused his death (Red 62B-D). The Judge's resolution of Hancomatic's cross-claim against the Council 77 As we have explained, as the primary judge understood the plaintiffs' case, the time when the motel reception area was built was not determinative of Hancomatic's liability. However, his Honour recognised that this issue was critical to Hancomatic's case against the Council which, in one of its branches, turned on making good the proposition that the Council was in breach of a duty to advise and/or require Hancomatic to comply with Ord 71, cl 44C or AS 1288-1973 at the time the motel reception area was constructed. 78 As the primary judge recorded, Hancomatic perceived it was necessary to argue that the relevant Council approval, including approval of the motel reception area, had been completed in August 1971 to protect it from any perceived liability to the plaintiffs arising out of a breach of cl 44C at the time of construction. It was only as an alternative that Hancomatic assumed for the purpose of the cross claim that the relevant approval had not been forthcoming until after 1 July 1972 (Red 63R-V). 79 The case the primary judge concluded was made out against the Council appears not to have turned on whether the motel reception area was approved after July 1972 when cl 44C became operative. His Honour concluded that the motel reception area was approved at the time the shopping complex was approved, i.e. in August 1971 (Red 67D). 80 However, his Honour appears to have concluded that despite formal approval in August 1971 of the shopping complex, the Council had a continuing role in relation to parts of the premises which had been approved but not constructed prior to 1 July 1972. In this respect he attached great weight to his conclusion that work on the motel reception area was not undertaken by either Mr Hurst or Mr Lindsay, but occurred after Mr Hurst finished work on the café/restaurant section (Red 64O). 81 The primary judge found that: To the extent that a subsequent approval can be inferred from the endorsement of the Hancock drawings by Mr Buckley in 1972, any such approval must be restricted to the motel section and could not extend to the motel reception area whose redevelopment had been approved in 1971 . (emphasis added) However, he also held: When the Council approved the Hancock drawings and implicitly the development of the motel section … was… sometime after 1 July 1972. In such circumstances there could be no doubt that cl 44C had to be complied with in relation to the motel units (Red 67A, W). 82 The primary judge noted that once cl 44C came into effect on 1 July 1972, the Council was under a duty by virtue of ss 310 and 314 of the Local Government Act 1919 to require that glass doors in commercial premises contained safety glass (Red 66). There was no evidence, however, that the Council had imposed a condition that the motel section comply with cl 44C (Red 68T). Having recorded that there was no evidence that the Council imposed a condition when it approved the Hancock plans that Hancomatic comply with cl 44C, the primary judge said: The Council was under a duty to notify [Hancomatic] at the time of 'approval' of the motel section of the requirements of Clause 44C. Mr Buckley admitted that there were occasions after 1 July 1972 when the Council failed to provide applicants with such notice. Such omissions do not excuse the Council from failing to carry out its obligations under the Local Government Act where the circumstances required. A notice to the effect that, in any construction associated with the original application whether part of the shopping complex or the motel section, safety glass was to be installed as required by Clause 44C was the least that was required of Council in the circumstances. Had such notice been given the Council may have been relieved of any responsibility for the absence of safety glass where it was required. … I find that the failure of the Council after Clause 44C came into force but before any work had commenced on the motel reception area , to bring Clause 44C to [Hancomatic's] notice was a breach of duty on the part of the Council and that it is liable for the consequences of that breach, which in this case is the full extent of [Hancomatic's] liability to the plaintiffs. [Hancomatic] was entitled to expect of the Council notification of the newly enacted requirements with regard to safety glass which would have provided the defendant with the means of avoiding liability for the death of Ryan Hancock. (emphasis added) (Red 68-69) It is implicit in the passage we have emphasised that the primary judge found the motel reception area was constructed after 1 July 1972. This is the only passage in the judgment where his Honour reached a specific conclusion as to that temporal issue. 83 The primary judge also held that the Council's failure to comply with the requirements of the Local Government Act in either advising of or requiring compliance with cl 44C was a breach of a duty of care to those such as the plaintiffs who might suffer injury as a consequence of the retention of annealed glass in premises in which safety glass should have been installed at the time the building work was carried out with the Council's approval (Red 69S-W). 84 He concluded that Hancomatic was therefore entitled to succeed on its cross-claim against the Council to the extent of complete indemnity on the grounds of either breach of duty to Hancomatic, or on the grounds that the Council was a joint tortfeasor which would, if sued, have been liable (Red 69). 85 It is convenient at this stage to summarise the primary judge's critical findings:

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The planning process and the building works 87 In order to appreciate the factual matrix from which the primary judge's findings emerge, it is necessary to pay close attention to the documentation brought into existence at the time of the redevelopment. 88 We will not repeat, save where necessary, the chronological framework which emerged from the documentary analysis the primary judge undertook. 89 On 15 March 1971, the Shire Clerk advised Mr Hancock that approval in principle had been granted for the proposal subject to compliance with building regulations as required by the Council's health and building office. There are various hand-written notes on what appears to be the Council's file copy of that letter including one stating "plan being prepared for lodgement". 90 Mr Abernethy submitted the plans to the Council (marked to the attention of Gary Smith) under cover of an undated handwritten note with the request that Mr Smith "have a look at them and let me know what you think" (Blue 1/9). 91 The plans which accompanied Mr Abernethy's note were dated April 1971 and comprised at least two sheets, one (WD 1) being the Foundation and Drainage Plan, and the other (WD 2) being the Ground Floor Plan (Blue 1/56-57). 92 The Ground Floor Plan showed to the east of the property, and fronting onto Wharf Street, a driveway for incoming traffic only. Immediately to the west and running backwards from Wharf Street was an area described as "Rentable Area", behind which was the "Motel Office". Immediately behind the Motel Office was an area described as "Caretaker's Rest Room". Written over the two areas for the motel office and the caretaker's rest room were the words "Al[uminium] framed FG [fixed glass] panel and swing door". 93 To the west of the Rentable Area was an area marked "Restaurant". To its north, across a corridor was the "Kitchen". There was a "Store" behind the Kitchen, and a "Refuse Area" behind the store. To the west of the Restaurant was an area marked "Snack Bar" which ran almost the length of the front section of the property and was marked, at the north end, "General Area". A note in the General Area stated "Existing brick walls shown as unhatched". 94 For present purposes, it is relevant to note that the plans depicted hatched walls (i.e. walls to be constructed) as follows:

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(e) a new wall was shown dividing the Motel Office from the Caretaker's Rest Rooms, with provision for access between the two areas at its eastern end. 95 The wall between the "rentable area" and the "motel office" was unbroken. The rear of the motel office was separated from the kitchen by a wall, but otherwise there was uninterrupted access as shown on the Plans from the swing door at the entrance of the motel reception area through to the snack bar/general area. 96 To the rear of the general area was a section marked "Toilets". To the rear of the toilets were a number of areas marked car spaces 1-5. At the intersection of the general area and the toilets was an inverted equilateral triangle pointing east over and around which was written "Datum point for start of new motel section." The motel reception area was to the south of the datum point. 97 To the north of the datum point, and running east-west along the rear wall of the toilets and the first car space was a red line with an arrow pointing to the north of the property against which were the handwritten words "motel section not approved PD". As we have earlier noted, these were the initials of a Council officer. 98 The Ground Floor Plan bore various stamps each of which appeared to be conditions relating to specific aspects of the building work, but none of which expressly stated that the works had been approved. Mr Buckley gave evidence that the Council did not use a formal "approved" stamp at the time. As we have already said, it was uncontroversial that the Council approved the shopping complex only on 26 August 1971. 99 By an undated letter on Hancomatic's letterhead, Mr Hancock wrote to the Council advising: Since the granting of the above approval for two shops and a restaurant in Wharf Street, Murwillumbah, there have been a few changes in the plans - namely the shifting of the toilets to go under the moved proposed motel extension, plans for which we shall be submitting later this year for your approval. If the enclosed amended drawings meet with your approval could you please notify us and we will call for the Builder's Copy and Drainage Plan as soon as possible. (Blue 1/16) 100 This letter appears to relate to another copy of the Abernethy plans, to all intents and purposes identical to the Ground Floor Plan we have described. However, the red line which previously ran west-east along the rear wall of the toilets and indicated the two stages of the works had been moved to the south. It now ran along the north wall of the general area and then in a virtually straight line east to cross the incoming driveway. It then ran along the southern boundary of the property, ending opposite the wall depicted behind the kitchen and the caretaker's rest rooms. (Blue 1/20) At the top of the line appeared another triangle, pointing south and the notations: "STAGE 1 FORWARD OF ARROW STAGE 2 REAR OF ARROW (SEPARATE CONTRACT)"

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Below that notation, and intersected by the east-west line, was another equilateral triangle pointing east, described as "datum point for start of new motel section". The motel reception area was within the area indicated as Stage 1. 101 On 12 October 1971 the Shire Clerk wrote to Mr Abernethy acknowledging the receipt of amended plans from him for the proposed motel section of the motel and shopping complex on behalf of Mr Hancock. The letter went on to advise that correspondence had been received from a legal representative of Hancomatic withdrawing any authority it might be deemed to have given Mr Abernethy to submit plans on its behalf or to seek Council approval for the construction of a motel on Hancomatic's land. The letter advised that in view of the foregoing the plans Mr Abernethy had lodged were to be held pending his further instructions (Blue 2/151). The evidence does not record why Mr Abernethy fell out of favour. He was not called to give evidence. No party commented about his absence. 102 We note at this stage, that Mr Hurst said that he undertook building work in the front section of the premises between December 1971 and no later than February 1972. We will return to the detail of his evidence in due course. It is convenient at this stage, however, to deal with the second set of plans which came into existence in 1972. The difficulty about determining the date the motel reception area work was done has arisen partly from the fact that the 1972 plans include the work approved by the Council in 1971 and described as in Stage 1 on the second Abernethy working drawing (Blue 1/20). 103 Robert Hancock was Howard Hancock's brother. He was a draughtsman (Black 274). In March 1972 he prepared two drawings for "Proposed Two Shops and Restraunt [sic, as in original] and 10 motel units at Wharf Street Murwillumbah". They were described as "Preliminary Only". The first plan numbered 102/1 (Blue 1/30) was described as "Ground Floor Plan and Parking Layout". It was clearly copied from the Abernethy Ground Floor Plan. It had an identical layout for that part described as Stage One on the second Abernethy Ground Floor Plan, save that it did not include any dimension details. It also bore the same descriptions of the various areas depicted, save that it did not caption the area shown on the Abernethy plan as "Toilets" and it contained different detail for the car spaces. 104 The second plan Robert Hancock prepared in March 1972 was described as "Existing Roof and 10 Motel Units" and was numbered 102/2 (Blue 1/31). It appeared to show the roof over the existing structure and 10 units, access to which was gained via a staircase at each end of the structure. 105 In May 1972, Robert Hancock prepared working drawings. Two 102/3 and 102/4 (Blue 1/32-33) related to "Proposed Two Shops and Restraunt" [sic, as in original], while two others, 102/6 and 102/7, referred to "Proposed 10 Motel Units" (Blue 1/34-35). 106 The layouts of the shopping complex area in Plan 102/3 appears identical to that in Abernethy Plan WD2 save for the following:

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(g) the most significant change was that whereas the toilets had previously abutted the general area, they had now been relocated into what appeared to be a separate building separated by a passageway, but substantially behind the refuse area; and (h) at the northern end of the motel driveway were two dotted lines marked "existing wall to be removed". 107 Hancock plan 102/3 also bore the caption "existing walls shown unhatched". In the floor plan of the shopping area, the walls shown hatched were the same walls which had been shown hatched in Abernethy plan WD2. This assumes particular significance in the Council's argument about the weight to be attached to Hancock plan 102/3. 108 The primary judge referred briefly (Red 39) to an undated set of specifications found in the Hancomatic development file in the Council's records (Ex 9) (Blue 5/12-25). His Honour described that document as requiring an "aluminium sliding glass door" in the motel reception area. He inferred that this was a change effected by an early Hancock drawing. 109 The document is headed "Minimum specification of 2 shops and a restaurant at 3, 5, 7, & 9, Wharf St., Murwillumbah for Hancomatic Music Co Pty Ltd". The plaintiffs, and Hancomatic in the sense we have earlier explained, relied upon this document to demonstrate that the motel reception area was constructed after July 1972. The Council argued that the document related to the Stage One works and demonstrated that Mr Hurst constructed the motel reception area as part of those works. 110 It is unnecessary to quote the document in detail at this stage. We refer only to those portions upon which the parties respectively relied. 111 First, the document required "4 existing openings in side walls to be bricked-up as best possible to match existing brickwork" (Blue 1/12-27). The Council says that this direction related only to the work undertaken in accordance with the Abernethy plans. 112 Secondly, a diagram in the section headed "concrete" had written against it "not approved PD". The Council relies on the proposition that this was a reference to Mr Denton, the Council officer who approved the Abernethy plans in August 1971. It also submits that this diagram related to the floor in the snack bar area which Mr Hurst said he constructed. 113 Thirdly, the document details the materials to be used at doors numbered 1-17. In particular it states: Door 14. 7'0" x 3'6" aluminium sliding glass door with fixed light and glass louvres over.

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117 He said that, as far as he could remember, there was no wall closing off the rear of the motel reception area as indicated by Mr Hurst (Black 253N). 118 Mr Hancock accepted, when cross-examined by Mr Wheelahan on behalf on the plaintiffs, that the development at Wharf Street proceeded in two stages, the first being the shopping complex and the second the construction of the motel units (Black 272-273). Mr Hancock said that the Abernethy plans were approved for the shops, but knocked back for the motel and that his brother had submitted the plans for the motel (Black 285W). He said that the only aspect of the plans his brother drew up which related to work that needed to be done to get the motel up and running in addition to the units, could have been the toilets "out the back" and that he and Mr Jonas might have changed the laundry a bit (Black 275T-276E). 119 We turn then to the evidence about the building works. 120 Mr Hurst (who was called by the plaintiffs) said he worked at the premises between December 1971 and no later than February 1972 (Black 212). He said he was engaged by Mr Jonas to refurbish the restaurant, a fun parlour and take-away place and a kitchen located on the "left side [of Wharf Street] looking from the front" (Black 205). He said he was not given any plans. He said he poured a slab in the Golden Spot (snack bar) area and that a Mr Edwards (a Council officer) inspected the steel before the slab was poured (Black 217). He said his work did not extend to any other area of the building than the Golden Spot, and "definitely not" to any work in the area depicted on Hancock drawing 102/3 as "Future Motel Recpt" (Black 206P, 208J). 121 Although Mr Hurst said his work did not continue beyond February 1972, he was shown (without objection) in examination in chief Hancock drawing 102/3. He said that he put in a wall, apparently at the northern end of the restaurant, but said there was no wall as depicted on Hancock plan 102/3 between the restaurant and the kitchen (Black 207V). The wall he put in gave direct access to the restaurant (Black 208F). He also said that there was a wall running north-south at the rear of the area captioned "Future Motel Recpt". In other words, according to Mr Hurst, the wall which divided the restaurant and the rentable area commencing at Wharf Street, continued uninterrupted to at least the northern wall of the caretaker's rest rooms (Black 208). 122 In cross-examination, Mr Deakin (who appeared for Hancomatic) showed Mr Hurst Abernethy plan WD2. His attention was drawn to the opening at the west boundary of the Motel Office. He said that his recollection was that the wall went "right through". He was "as near as possible" certain about that (Black 214). 123 Mr Hurst said he demolished a wall between the kitchen and the amusement area and replaced it with another wall (Black 214). He said he also did work on the awning to stabilise it and sheet it underneath (Black 215). 124 Mr Deakin asked him whether he could be mistaken in relation to performing work outside the area of the snack bar and restaurant, but he said "definitely not" (Black 215E). 125 Mr Lindsay gave evidence in Hancomatic's case. He had entered into Articles of Agreement with Hancomatic on 7 June 1973 to complete 10 units in accordance with the details shown on plans numbered 102/6, 102/7, 102/8 and specifications approved by the Council. Attached to the Agreement was a document described as "minimum specifications of 10 motel units" (Blue 2/159ff). According to Mr Lindsay, the minimum specification was attached to the Agreement when it was signed in 1973. 126 Mr Lindsay was shown Hancock plan 102/3 which, it will be recalled, showed at the northern end of the motel driveway two dotted lines marked "existing wall to be removed". Mr Lindsay said that when he went to the premises to carry out an inspection in late 1972 for the purposes of giving a quote, there was no wall as shown on the plan - the driveway was open right through (Black 290Y - Black 293 O). He also said that the opening depicted on the plan in the area described as "future motel reception" was present and that there was glass there, but he could not recall what sort of door had been used (Black 291-292). He said he did not perform any work in the area marked "future motel reception" nor in relation to the driveway (Black 292). 127 Mr Buckley gave evidence in the Council's case. He was asked to comment on the apparent absence of documents relevant to the 1972 period in the Council's possession to which he responded: It's obvious from previous evidence that there was work constructed in 1971, and then there was further work constructed in 1973, and the files deal with that period. My expectation would be that there was not activity, in relation to the matter, in the intervening time other than the amended plans that were submitted and are part of the file. (Black 551T) 128 He said that the May 1972 plans were found in the file concerning the June 1971 building application because they were dealt with as part of that application. He said he had approved the 1972 plans as part of the 1971 application (Black 552).

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When the motel reception area was constructed 129 The plaintiffs bore the onus of proving that the annealed glass was installed after 1 July 1972 insofar as they sought to establish negligence based upon non-compliance with cl 44C. The same goes for any liability of the Council on the Cross Claim, having regard to the way that the case was fought and decided at trial. 130 The effect of the primary judge's analysis of the evidence concerning the construction of the motel reception area can be summarised as follows. 131 First, the primary judge did not make an express finding about when the motel reception area was constructed. It was only in the course of dealing with Hancomatic's cross-claim against the Council that his Honour said: I find that the failure of the Council after Clause 44C came into force but before any work had commenced on the motel reception area , to bring Clause 44C to [Hancomatic's] notice was a breach of duty on the part of the Council and that it is liable for the consequences of that breach, which in this case is the full extent of [Hancomatic's] liability to the plaintiffs. [Hancomatic] was entitled to expect of the Council notification of the newly enacted requirements with regard to safety glass which would have provided the defendant with the means of avoiding liability for the death of Ryan Hancock. (emphasis added) (Red 69) 132 Secondly, this finding must be viewed against his Honour's earlier observations that there was almost no evidence regarding the renovation of the motel reception area where the accident happened, and no reliable evidence of when and by whom that aspect of the work was undertaken. 133 The foundation for his Honour's finding appears to have been his acceptance of Mr Hurst's denial that he constructed the motel reception area (Red 36) and his acceptance of the proposition that where "future" appeared on Hancock drawing 102/3, it meant a decision to postpone the work on the reception area. His Honour appears to have relied on these matters to infer that the development was carried out in three, not two, stages and that the stage which included the motel reception area was completed by neither Mr Hurst nor Mr Lindsay. His Honour also inferred that the work on the motel reception area occurred after Mr Hurst completed his work. Mr Hurst completed his work no later than the end of February 1972. 134 The Council submitted that the primary judge's finding that there was no reliable evidence as to when the motel reception area work was done should have resulted in Hancomatic's cross-claim against it failing. It accepted that in recording this decision his Honour was principally influenced by what he regarded as the "difficulty" of rejecting Mr Hurst's denial that he had done any work on the motel reception area. It was possible, as Mr Hurst said, that the internal entrance to the motel reception area was sealed off from the restaurant area where Mr Hurst accepted he had undertaken work. 135 The Council submitted, however, that Mr Hurst's evidence to this effect, and the primary judge's derivative use of it, was inconsistent with the Abernethy and Hancock plans. The Council also submitted that the primary judge should not have accepted Mr Hurst's evidence that the motel reception area was "sealed off" in the light of his rejection of Mr Hurst's evidence that he had not been given any plans of the work he was required to do and that the "corridor" leading from the motel reception area which was shown on all the plans did not exist (see Red 36M-P). 136 In such circumstances, the Council submitted that there was no difficulty in rejecting Mr Hurst's "categorical denial" of working on the motel reception area. His "denial" on this topic was not relevantly any more "categorical" than his other evidence which the primary judge did reject. The Council submitted that Mr Hurst's denial was not reliable and provided no basis for any finding as to when the work in the motel reception area was undertaken. 137 The Council also submitted that there was no evidentiary basis for the primary judge's finding that it was "more likely than not" that the redevelopment was carried out in three stages and that the work on the motel reception area was undertaken by someone Hancomatic did not identify. 138 The Council submitted that the primary judge's finding in this respect appeared to have been principally influenced by the fact that the May 1972 Hancock drawings included the "shop" and motel reception area as well as an inference that an undated specification was a detailed door schedule. The Council argued that a finding with those bases was flawed by its failure to take proper account of the facts that:

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(e) pouring a concrete floor in the "Golden Spot"/snack bar area (see page 2 of the undated specifications); and (f) putting in a new ceiling, did painting "and various things - virtually refurbished" (see pages 5 and 7 of the undated specifications) (Orange 141). 140 The Council submitted that when the evidence was properly considered there was no evidentiary basis for the finding that there were three building contracts and strong evidence that the undated specifications were prepared for the purpose of the first stage of the building work and long before the May 1972 Hancock plans. It also contended that there was no evidence that the undated specifications were submitted in connection with the Hancock plans. 141 Both Hancomatic and the plaintiffs support the primary judge's finding that the work in the motel reception area occurred after 1 July 1972. The principal argument upon which they relied to support this finding was the fact that in Hancock drawing 102/3 all entrances had been numbered from 1-17, numbering which unarguably corresponded with the numbers assigned to the doors in the undated specification. In particular, they relied upon the fact that in the original Abernethy plan, WD2, the door to the motel reception area was to be a swing door, whereas in the undated specifications, door 14 (the door to the reception area) was described as an aluminium sliding glass door. Hancock drawing 102/3 did not bear a caption identifying the nature of the door or materials to be used at the entrance to the motel reception area. However, there appeared to be a faint indication of a swing door at that point. 142 Mr Taylor submitted that this Court was not constrained in reviewing the primary judge's reasoning by Abalos v Australian Postal Commission (1990) 171 CLR 167. Rather, he contended, his Honour's reasoning was probabilistic and not based on credibility findings. To the extent that his Honour did not accept the entirety of Mr Hurst's evidence, but, rather, rejected parts, Mr Taylor submitted that his Honour must have reached that conclusion by a process of inference, which was equally available to this Court. 143 In our view, the compelling inference from the evidence is that the work on the motel reception area was undertaken as part of the Stage 1 redevelopment and was completed by Mr Hurst no later than February 1972. In the course of that process Mr Hurst installed the glass sliding door in the motel reception area which was still in place at the time of the accident in March 1999. Mr Hurst installed annealed glass in that door which, at the time, he was legally entitled to do. To set that finding in context, we would remind the reader, that while Ordinance 70, cl 44C had been gazetted in January 1972, it did not become operative until 1 July 1972. 144 We have reached this conclusion by reference to the following evidence. 145 The original development application related to shops and a motel. Mr Abernethy's plans depicting a redevelopment of that nature were submitted to the Council. In August 1971 it approved that stage of the development relating to the shopping complex, but rejected that part relating to the motel. The motel reception area was within the shopping complex. 146 Mr Hancock said the work proceeded with the shopping complex, in which he included the motel reception area, as soon as it was approved. He also said that there were only ever two builders, Mr Hurst who did the front section and Mr Lindsay who did the back section. Although the primary judge accepted that Mr Hancock was "not untruthful", he appears to have rejected his evidence that there were only two builders because of his view that Mr Hancock's memory was "fading" and that for this reason his evidence was unreliable as, too, because he was not directly involved in the redevelopment. However, with respect, Mr Hancock's evidence was consistent with the contemporaneous documents showing the work proceeding in two stages and with other aspects of the work, including, for example the fact that there was a re-organisation of the toilets which, no doubt, led to the moving southward of the line separating stages one and two on the second version of WD2 (Blue 1/20). 147 Part of the primary judge's process of reasoning involved him rejecting the Council's building register as a reliable source of evidence with regards to the approval process. His Honour's discomfort with the reliability of the Register appears to have been because it did not record any subsequent building application after June 1971 by either Hancock or Hancomatic, we infer in relation to the motel units. His Honour appears to have inferred that if the application relating to the motel units was not recorded in the register, there may have been a third application which was not recorded in the Register which related to the works which included the reception area. 148 However, his Honour's finding in this respect appears to have overlooked Mr Buckley's evidence that the May 1972 plans were dealt with as part of the June 1971 building application. On this basis, the Register was accurate. There was only one building application, which was dealt with by the Council in two stages. That, again, is consistent with the contemporaneous documents (and with Mr Hancock's recollection). 149 The objective evidence to this stage, accordingly, in our view strongly supports the proposition that the motel reception area was to be constructed as part of Stage 1 of the redevelopment. Mr Hurst accepted he did part of the Stage One works. It is highly probable he did them all. 150 However, the Hancocks and Hancomatic say that a number of matters militate against reaching this conclusion. First, of course, is Mr Hurst's denial that he did any work in the motel reception area. Secondly, they point to the undated specifications enumerating the doors in the redevelopment, including that leading into the motel reception area which numbering they say is only found on Hancock drawing 102/3 dated May 1972. 151 The primary judge did not deal with the significance of the undated specifications. They were, however, the subject of great attention by all parties on appeal. 152 We accept that there is a tension between the undated specifications and the Abernethy plans in that none of the latter record the door numbering referred to in the undated specifications. Equally, as the plaintiffs and Hancomatic pointed out, those door numbers do appear in the Hancock drawings prepared in 1972. 153 However, in our view, a number of internal indicia in the undated specifications, coupled with Mr Hurst's evidence, support the proposition that the undated specifications were prepared in relation to the Stage 1 redevelopment. 154 While the document is described as "Minimum Specification of Two Shops and a Restaurant" it is uncontroversial that it relates to all the work which was to be undertaken as part of the Stage 1 development, with the exception we would note, of the toilet area to which we will return. 155 Next, while much of the specifications are written in general language relating to such issues as the thickness of concrete, foundations and drainage, to the extent it refers to specific items, they relate only to the Stage 1 development. 156 First, the specifications require internal walls to be of certain dimensions "to [the] reception area as indicated on plan". 157 Secondly, the specifications refer to four "existing openings in side walls to be bricked up as best possible … " (Blue 1/1227). This could only relate to the Stage 1 works which involved the refurbishment of an existing building, whereas the Stage 2 works, the construction of the motel units, involved the construction of an entirely new building behind the previously existing one. 158 Thirdly, the document is replete with references to work to be done in the snack bar, kitchen, restaurant area where Mr Hurst acknowledged he carried on work. Those references appear interspersed with references to work to be done in the other areas which formed part of Stage 1 such as the storeroom, the refuse area, shop 1, the caretaker's restroom and the caretaker's bathroom, all, again, part of the Stage 1 works. The caretaker's area was, of course, immediately adjacent to the motel reception area. It was marked "future" in the Hancock drawings. If, as the specifications indicate, it was to be undertaken as part of the Stage 1 works, that would tend to support Mr Tozer's evidence that the word "future" indicated future use, rather than future construction. 159 Fourthly, we note that the door numbering which appears in the undated specifications relates, in part, to areas where Mr Hurst said he undertook work. Thus, doors 7 and 8 were the doors in the northern wall of the restaurant section, while 9 and 10 were the doors fronting onto Wharf Street in the snack bar and restaurant respectively. 160 The next aspect of the undated specifications requires revisiting the development application process and Mr Hancock's evidence. 161 First, it will be recalled that by an undated letter, Mr Hancock had informed the Council of a change in the plans since the approval of the shopping complex in that the toilets had been shifted to go under the proposed motel extension. As we noted there is another copy of the Abernethy plans which showed the Stage 1 development as not including the toilets. 162 However, the undated specifications refer in detail to toilets which are clearly the toilets depicted on 102/3 in a building separate from the shopping complex from which it is separated by a corridor to the north of the refuse area. Door number 1 as set out in the undated specifications is the door into the men's toilets. Thus it is apparent, in our view, that by the time the undated specifications were prepared, the Stage 1 redevelopment included the toilets. This would have been essential to ensure amenities were available to the patrons and staff of the shopping complex. Further, there is no suggestion that Mr Buckley approved the toilets, or that their construction was included in the Lindsay works. 163 In our view, a compelling inference to be drawn from the substantial similarities between the Abernethy plans and the undated specifications is that the latter related to the Stage 1 works and that the numbering of the doors which appears in Hancock plan 102/3 had first been used in relation to the doors to be constructed in the Stage One development prior to the Hancock plan coming into existence.

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164 Further, walls Mr Hurst said he constructed are shown as still to be constructed in Hancock plan 102/3. This tends to support the proposition that the Hancock plans relating to the shopping complex area were not intended to indicate work yet to be done. 165 This leads us to return to Mr Hurst's evidence, and his Honour's analysis of it. The most critical aspect of the primary judge's assessment of Mr Hurst's evidence, in our view, is found in his implicit rejection of Mr Hurst's evidence that there was no corridor between the restaurant and the kitchen at the time he did his work. Although his Honour referred to Hancock plan 102/3 in making that finding, as we have earlier sought to demonstrate, the corridor to which his Honour referred is that also depicted on the Abernethy plan, WD 2. That corridor was to be created by the construction of walls to the south of the kitchen, the north of the restaurant and running east along the south wall of the motel reception area. Mr Hurst accepted he built one wall in that location. If his evidence that there was no corridor there is rejected, then it is most probable he constructed the other wall. If he constructed a wall to the outer boundary of the motel reception area, it is inconceivable, as Mr Taylor submitted, that he would not have constructed the door to make that area secure. 166 We accept that the fact that Mr Hurst was disbelieved does not prove the opposite of what he asserted: Steinberg v Federal Commissioner of Taxation (1975) 134 CLR 640 (at 694) per Gibbs J. However, as Rath J observed in Calvin v Carr & Ors [1977] 2 NSWLR 308 (at 328) "the factual circumstances which lead to … disbelief [in the witness's evidence] may themselves be evidence of the contrary proposition; or the evidence which is disbelieved may be given in circumstances in which its falsehood points to the truth of contrary evidence". Here, in our view, there is strong evidence to prove the opposite of what Mr Hurst asserted. 167 The primary judge's rejection of Mr Hurst's contention that there was no corridor was compelled by the Abernethy and Hancock plans, all versions of which showed a corridor in the position Mr Hurst denied one existed. Further, the primary judge's difficulty in accepting Mr Hurst's evidence in this respect appears to us to be inconsistent with his Honour entertaining the possibility that the motel reception area remained sealed off from the restaurant and the kitchen while Mr Hurst was on site. Apart from Mr Hurst's assertion that that area was sealed off, all the plans, as we have earlier remarked, indicated a corridor, uninterrupted between the western most wall of the restaurant and the eastern wall, which was the frontage to the motel reception area. 168 Next, we would remark that Mr Hurst commenced work within weeks of Mr Abernethy's authority being withdrawn. That is consistent with Hancomatic wanting to get the shopping complex section built so its amusement machines could be put in place.

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Other difficulties with the claim that Hancomatic was negligent as a builder 174 There was no finding that Hancomatic itself did any of the building work in 1971-73. Nor did Mr Hancock. Professional builders were used, in all probability Mr Hurst and Mr Lindsay and no one else. 175 Erecting a building in contravention of Ordinance 71 was a criminal offence (Local Government Act 1919, s632; Ordinance 71, cl 84). 176 The plaintiff did not establish that the builders were retained as employees or otherwise in circumstances to render Hancomatic vicariously liable for their negligence. They appear to have been retained as independent contractors with professional qualifications. Mr Hurst had a subcontrator's building licence at the relevant time (Black 205). Mr Lindsay was a licensed builder (Black 289). 177 As a general rule, a principal does not bear vicarious responsibility for the tortious acts of an independent contractor, including the contractor's employees, engaged by the principal to perform work on its behalf (Halsbury's Laws of Australia [165-1055]; Boylan Nominees Pty Ltd t/as Quirks Refrigeration v Sweeney [2005] NSWCA 8, 148 IR 123; Leichhardt Municipal Council v Montgomery [2007] HCA 6, (2007) 233 ALR 200). There are exceptions, including the situation where the principal is negligent in the choice of its contractor as well as the doctrine of non-delegable duty, but none of them were engaged in the present case in the way it was fought. 178 A further difficulty with the plaintiffs' claim under the notice of contention may be flagged without reaching a conclusion on it. The plaintiffs had to go beyond establishing a breach of cl 44C because their claim lay in negligence, not breach of statutory duty. 179 Breach of a statutory duty may be evidence of negligence but it is not definitive (Sibley v Kais (1967) 118 CLR 424 at 427; Sutherland Shire Council v Heyman (1984) 157 CLR 424 at 459; Brock v Hillsdale Bowling and Recreation Club Ltd [2007] NSWCA 46). 180 No evidence was led in the case to show any state of general or even specialist knowledge with respect to safety glass at the time when the building work was done. It was common ground that the redevelopment was completed by 1973. Even if the glass door had been installed after 1 July 1972 more would have to be shown than non compliance with cl 44C to establish the builder negligence arm of the plaintiffs' case.

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The alternative claim that Hancomatic was negligent for failing to conduct a safety audit 181 This was the claim upheld in the District Court as the basis of the awards of damages against Hancomatic. In turn, it became the liability for which Hancomatic obtained indemnity in its successful Cross Claim against the Council in each proceeding. 182 We have already summarised the findings against Hancomatic referable to the safety audit breach (paras 57-76). 183 These were commercial premises owned by Hancomatic, but they were not occupied by Hancomatic at the time of the accident. More to the point, the safety audit claim against Hancomatic had not been advanced upon the basis of such occupation. 184 The relevant duty was found to have arisen when Hancomatic undertook substantial renovations in 1997, if not before (Red 56). This refurbishment occurred under the oversight of the plaintiffs Mr and Mrs Hancock. It was they who concluded that no relevant work needed to be done to upgrade the reception area (Black 73, 152, 174). Over $150,000 was spent with most decisions being made by Mr Hancock snr based on suggestions from his son and daughter-in-law (Red 42). The focus was clearly related to general beautification of the motel premises. No structural renovations were done. 185 No one ever set about a conscious safety audit. Regrettably, all members of the Hancock family appear to have been unaware of the potentially dangerous propensities of annealed as distinct from safety glass until Ryan's fatal accident. 186 Nothing was done to change the glass in the reception room door. It is not suggested that there were any relevant structural alterations in that area. 187 Neither Mr Hancock snr, as the then principal of Hancomatic, nor his son and daughter-in-law professed any expertise in safety or construction matters. 188 On 18 July 1997 A R Hancock & Co Pty Ltd took possession of the premises as tenant under an oral lease. Thereafter it operated the hotel under the day to day management of the two adult plaintiffs. This was the situation at the time of the accident. The plaintiffs and their children lived on the premises until late 1998. 189 The door in question was a sliding door. In light of the findings we have already made it may be taken that it was installed in late 1971 or early 1972 by licensed builders retained by Hancomatic. The work was done in accordance with approved Council plans that were silent as to the type of glass required. It complied with Ordinance 71 at the time. 190 The learned primary judge discussed and distinguished Northern Sandblasting Pty Ltd v Harris (1996) 188 CLR 313 and Jones v Bartlett (2000) 205 CLR 166. He concluded that annealed as distinct from safety glass was not a "dangerous defect" in the sense discussed in Jones. 191 In Jones, the plaintiff injured his knee when a glass door inside a family home shattered. The home was leased by his parents from the defendant. The High Court held that the defendant had not breached any common law duty in the circumstances, given that the door complied with the legal standards applicable at the time of its construction even though it was not of the thickness required under standards for new doors applicable from 1973. 192 Judge Phegan recognised that the judgments in Jones (at 177[22], 216[173], 217[178]) emphasised the absence of a "defect" which was known or ought to have been known to the landlord (Red 45). (See also Sakoua v Williams (2005) 64 NSWLR 588.) He quoted Gleeson CJ (at 177[22]) who observed that there was "nothing about the premises that alerted, or should have alerted, the owners to any unusual danger. The premises were constructed in accordance with the standards prevailing at the time, and, so far as appears from the evidence, were adequately maintained." 193 The learned judge then addressed the submission that a more stringent standard applied to owners of commercial premises, including premises (like the present) that were partly commercial and partly residential. His Honour cited Brady v Girvan Bros Pty Ltd (1986) 7 NSWLR 241 per Kirby P, Johnson v Johnson (NSWCA, 10 September 1991, unreported), and Drotem Pty Ltd v Manning [2000] NSWCA 320 as supporting the proposition that the occupier of commercial premises has "an obligation of regular inspection in order to detect and remove defects which should be revealed by such inspection" (Red 47). 194 Hancomatic submits that this proposition was irrelevant to a case, like the present, where the accident occurred on part of the demised premises. Judge Phegan recognised the latter point, holding that in none of the cases he cited was the plaintiff injured on part of the premises that had been leased to the occupier (Red 47). 195 It was also submitted that Phegan DCJ's statement overstated the scope and stringency of the duty and that there is no duty with a higher content falling upon the occupier (let alone owner) of commercial premises. As we indicate later in this judgment, we accept these submissions. 196 His Honour continued (Red 47-8): In none of those cases was it necessary to address the question whether the obligation of regular and continuing inspection would extend to leased premises. However, any uncertainty in that regard is of little consequence in this case. There is no evidence to suggest that an inspection close to the incident in which Ryan Hancock was killed would have revealed anything different from an inspection conducted immediately before the motel premises were leased to A R Hancock & Co in July 1997. Provided that the duty to inspect existed when the defendant was in occupation before handing over possession to A R Hancock & Co and such inspection would have exposed the danger, the plaintiffs would have a potentially successful claim. A further point of distinction between the above line of cases and this case is that the danger in those cases was readily apparent on inspection by an occupier without particular expertise. Drotem was a case about a slippery walkway. In Johnson , there was visible evidence of dry rot in a staircase and in Brady the plaintiff slipped on jelly on the floor of a public area in a shopping complex. Before the defendant could be held liable in this case, the duty would have to extend to the conduct of inspections by a person qualified to distinguish between annealed and safety glass unless the defendant had actual notice of the danger. Such an extended duty assumes that a person appropriately qualified would be able to make that distinction and therefore put the defendant on notice of the need to replace the annealed glass. 197 Hancomatic and the Council are critical of this formulation of an "extended duty". They submit, and we agree, that a duty of care should generally be expressed in the form of a duty to exercise reasonable care. What is reasonable depends on a myriad of circumstances. The commercial nature of premises is clearly relevant to questions of breach, if for no other reason than that commercial premises like these would have members of the public coming and going in the particular area. 198 Speaking of "dangerous defects" in residential premises, Gummow and Hayne JJ said in Jones (at 220[186], 221[193], footnotes omitted): … the steps a landlord was required to undertake were only those that would be taken in the course of "ordinary reasonable human conduct". The matter is not an exercise of hindsight. The identification of the requisite steps will depend, among other things, upon whether an ordinary person in the landlord's position would or should have known that there was any risk; whether that person would or should have known of steps that could be taken in response to that risk; and the reasonableness of taking such steps. … The content of the landlord's duty in a case such as the present is not one of strict liability, to ensure an absence of defects or that reasonable care is taken by another in respect of existing defects. It is not a duty to guarantee that the premises are safe as can reasonably be made.

[73]

See also New South Wales Department of Housing v Hume [2007] NSWCA 69; (2007) Aust Torts Reports 81-879. 199 We would observe that there will undoubtedly be situations where a duty to exercise reasonable care to avoid personal injury occurring in commercial premises may be discharged by the manner in which the occupier permits or restricts activities taking place in the particular area, as well as by erecting adequate warning signs. 200 In the present case there were clearly visible reflective strips over the glass on the offending door (Black 5). We are not stating that this in itself discharged the duty of reasonable care. Our point at this stage is the broader one, that the trial judge's framing of the duty misstated the duty and foreclosed the enquiry that must take place, according to the principles in Wyong Shire Council v Shirt (1979) 146 CLR 40, before any conclusion of breach can properly be made. 201 Judge Phegan then addressed the matter of "expert inspection". He noted that, in Jones, the only expert to give evidence was not asked whether he would have recommended replacement of the glass in the door (see Jones at 174). Similarly, in Ahluwalia v Robinson [2003] NSWCA 173 (a case involving a child who slipped and fell thought an annealed shower screen), it was held that the evidence did not justify a finding on the balance of probabilities that even a person with some general expertise in building or architecture would have detected that the glass in the bathroom was not safety glass. 202 Judge Phegan referred to evidence in the present case from an expert and a glazier showing that an inspection by an appropriately qualified person would have isolated those glass panels which did not bear a safety glass demarcation (Red 49-50). (There is a factual dispute on this matter, but we pass over it.) His Honour nevertheless acknowledged, correctly in our opinion, that it was still necessary for the plaintiffs to establish that Hancomatic had "a duty … to have such an inspection carried out" (Red 50). 203 His Honour then addressed "prevailing standards", referring to Ordinance 71 cl 44C and the 1973 Australian Standard AS1288 (Installation of Glass in Buildings). However, each applied explicitly to "installation" and neither required the removal of annealed glass and its replacement with safety glass (Red 52). His Honour acknowledged that. For that reason their relevance as the foundation of a duty on the part of either Hancomatic or the Council depended upon whether the door to the reception area was installed after they were in effect. Nevertheless, the judge did not apply his later finding about the timing of the installation to this duty enquiry (see Red 52). In any event, we have indicated why we do not share his Honour's view on this factual issue. 204 Judge Phegan did, however, state that the standard, in particular that contained in Ordinance 71 cl 44C, was relevant to show that "safety requirements in commercial premises of which that ordinance and the Australian Standard are part had, over time, become a matter of actual or constructive knowledge on the part of the defendant" (Red 53). 205 Then commenced the critical portion of his Honour's reasons on the question of the safety audit breach (Red 53-57). 206 His Honour accepted the evidence of Mr Howard Hancock that at no relevant time had he addressed his mind to the kind of glass used on the motel and restaurant premises nor had he understood the difference between annealed and safety glass (Red 53, 56). He also accepted Mr Hancock's evidence that he was ignorant of the types of glass used in the buildings (Red 56).

[74]

207 Factual issues concerning Mr Hancock senior's knowledge of specific incidents involving the breaking of glass at the subject premises were then addressed (Red 53-55). The only finding adverse to Hancomatic as regards actual knowledge related to the incident involving the "hoons" who has smashed in a window on one of the shop fronts in 1988 (Red 43, 53-55). 208 The judge made no reference to the role of the adult plaintiffs or the lease of the motel to their company, A R Hancock & Co Pty Ltd, as relevant to Hancomatic's duty of care or the question whether that duty was breached. 209 No evidence was led at trial as to standard practice concerning inspections to detect dangerous glass situations or any practice of upgrading annealed to safety glass in particular circumstances. Indeed, in the passage quoted in the next paragraph, the Judge stated that he was not satisfied that "industry standards" about the use of safety glass "would necessarily have come to the attention of owners of commercial premises" (Red 54-5). 210 Nevertheless, Judge Phegan proceeded to find that Hancomatic had a duty when it undertook substantial renovations in 1997 "to make appropriate inquiries and conduct a safety audit of the kind described by Dr Ludcke" (Red 56), an expert called by the plaintiffs. The critical passage needs to be set out (Red 54-6): In the course of preparing for the new arrangement to be put in place in 1997, under which the premises were to be leased to A R Hancock & Co and managed by Letitia and Anthony Hancock, the state of disrepair into which the premises had been allowed to fall was evident. Howard Hancock acknowledged the state of the premises at the time in his evidence-in-chief: … we knew the place needed a fair bit of restoration, needed painting inside and out, a whole lot of work had to be done, carpets renewed and a lot - lot of renovation [my emphasis] He was reminded in cross-examination that, in addition to inspecting prospective air conditioning units with his son, he also inspected the premises with particular regard to the state of the shower screen, which he noted were "getting rusty": … they had wire in between the glass and the wire over the years had started to rust in the glass. The shower screens were replaced but it was Howard Hancock's evidence that he noticed nothing else about the glass in other parts of the premises. It was at this point that it would certainly have been reasonable to expect more of the defendant, through its principal Howard Hancock, than attention only to defects which were apparent from Mr Hancock's own inspection. For twenty five years he had chosen to leave almost all of the decision making with regard to the composition and condition of the premises in Wharf Street Murwillumbah to others. At the time of the construction of the motel he had delegated the task to his partner, Jan Jonas, and twenty five years later, when undertaking substantial repair and renovation of the premises, he relied extensively on his son and daughter-in-law to identify what work needed to be done. However incomplete the development of relevant case law in defining with any degree of precision the duty of a landlord of commercial premises, support for the conclusion that the defendant through Howard Hancock failed to exercise sufficient care with regard to the safety of the premises and in particular the type of glass used in doors and other exposed parts of the premises can be found in the general statements of both the High Court and Court of Appeal discussed earlier. Howard Hancock appears to have given no attention at any time to matters of public safety notwithstanding the use of the premises as a motel and restaurant, both designed to attract members of the public of all ages. As Dr Ludcke observed in his report, the industry standard requiring the use of safety glass had been in place for almost twenty five years at the time the premises were repaired and renovated in anticipation of the A R Hancock & Co lease. I am not satisfied that such industry standards, as long standing as they were, would necessarily have come to the attention of owners of commercial premises. However, in the case of premises used for the purpose of a motel and restaurant as well as other street front shops, some attention to matter of public safety could reasonably be expected of the owner and even the most cursory inquiry of a person in the building trade would have put Mr Hancock on notice of the need to use safety glass in commercial buildings. I noted earlier that I accept the evidence that he remained ignorant of the types of glass used in buildings. As he put it, he "never even thought about glass" . Given the use to which his company's premises were put, such an attitude bordered on willed ignorance. Mr Hancock went to some length in the course of his evidence to emphasise the rare occasions on which he visited the premises. Although there was some evidence that he lived on the premises for a short time at one stage, even that had earlier been denied by him. He attempted to explain this inconsistency by suggesting that he had misunderstood the period to which the question put to him earlier was directed. All of the evidence points to the conclusion that Mr Hancock preferred to have as little as possible to do with the premises. But his persistent attempts to distance himself from decisions which had to be made from time to time are not sufficient to protect him from responsibility for his comprehensive failure to give any attention whatsoever to matters of public safety on the premises. The knowledge of the wired shower screens which were replaced, while not constituting actual notice of the type of glass in other parts of the premises, should have been sufficient to prompt a landlord conscious of public safety to ask why such glass (which apparently was safety glass) was used. When it undertook substantial renovations in 1997, the defendant was under a duty at that stage, if not before, to make appropriate inquiries and conduct a safety audit of the kind described by Dr Ludcke. Had this been undertaken, the evidence is that it would have disclosed the extent to which annealed glass still remained on parts of the premises where installation of safety glass was required. A proper regard for public safety would have required of the defendant, in response to such a discovery, to have replaced annealed glass with safety glass, particularly in areas where the glass was in the path of or adjacent to entrances and exits to and from parts of the premises used by members of the public including prospective customers and clients of the lessees of the defendant. My conclusions are based on the particular facts of this case, as they must be. A feature of those facts is the cumulative impact of events over a twenty five year period which began with the construction of the Town Motel. Its construction happened to coincide with, and more likely than not post-date, the introduction of a Local Government Ordinance requiring the use of safety glass in doors installed in commercial premises. From the time of the motel's construction up to Ryan Hancock's accident no attention was ever given by the defendant, who remained the owner of the premises throughout that time, to matters of public safety notwithstanding the continuing use of the premises as a motel and restaurant. Most importantly in 1997, when extensive renovations and repairs were undertaken, the defendant failed to include any safety audit for the purpose of addressing structural features which had long been recognised as a prospective danger to the public. I therefore find that the failure of the defendant to conduct such an audit was a breach of its duty of care which resulted in the death of Ryan Hancock. Although not strictly necessary, I will add the observation that the incident of vandalism in 1998, to which Mr Howard Hancock attended directly, should have been sufficient to raise in the mind of the landlord a concern about whether glass on parts of the premises was sufficiently resilient to impact to avoid exposing other persons to the risk of serious injury. An appropriate response, although at a stage when A R Hancock &Co was already in possession as lessee, would still have been sufficient to avert what happened on 3 March 1999. If the duty of the landlord of commercial premises persists during the term of the lease, this constitutes an additional ground for liability. 211 This passage contains the essential findings adverse to Hancomatic touching the safety audit issue, as regards both duty and breach. The reasoning as to duty and as to breach is sometimes elided. 212 Hancomatic has submitted (as it did below) that it did not owe the audit duty found to have been breached and that it was not negligent in the circumstances. We would accept both submissions for the reasons that follow. 213 In our opinion, any duty of care resting upon Hancomatic as owner ought to have been expressed in the form of a duty to exercise reasonable care in the circumstances. To frame it as a duty to "make appropriate inquiries and conduct a safety audit" (Red 56) was to overstate the content of the duty and thereby skew the breach enquiry. 214 It was accepted that Hancomatic through Mr Hancock snr had no actual knowledge of the risk stemming from using annealed as distinct from safety glass. It was also found that this risk did not constitute a "dangerous defect" in the sense used in some of the judgments in Jones as the springboard for a duty of care with a more specific scope than the standard one. Neither of these conclusions is challenged in this appeal. We agree with them in any event. 215 We do not, with respect, share his Honour's view that the wilful vandalism incident of 1998 had any bearing upon the scope or content of the duty of care touching the annealed glass in the door to the reception room or any question of breach. 216 Nor does the plaintiffs' case gain assistance from the fact that wired shower screens were replaced as part of the refurbishment works. This was done because they were rusty (Black 261). 217 When his Honour emphasised (Red 57) that his conclusions were based on the particular facts of this case, he added particular reference to the fact that the construction of the motel "happened to coincide with, and more likely than not post-date, the introduction of a Local Government Ordinance requiring the use of safety glass in doors installed in commercial premises". We have already explained our rejection of this important temporal finding. 218 Once it is accepted that the door was installed before July 1972 the duty and breach questions fall to be decided against the background of unchallenged or unchallengeable findings that:

[80]

See also Ridis v Strata Plan 10308 (2005) 63 NSWLR 449 at 477[133]. 223 We recognise, as did the primary judge, that Jones and Ahluwalia involved residential premises. What is reasonable to be done in one situation may not be reasonable in another (Jones at 185[58], 216[174]). But the nature of the premises is not determinative of the scope of the relevant common law duty, which remains one that is focussed upon what is reasonable in the circumstances even for commercial premises or premises open to the public (see eg David Jones Ltd v Bates [2001] NSWCA 233; Wilkinson v Law Courts Ltd [2001] NSWCA 196; North Sydney Council v Plater [2002] NSWCA 225). 224 It is unnecessary to deal at length with Hancomatic's challenge to the finding of breach. 225 Hancomatic occupied and had control over the premises when the motel refurbishment took place in 1997 shortly before the unwritten lease to A R Hancock & Co Pty Ltd. 226 Hancomatic and its principal, Mr Hancock snr, were ignorant of the particular danger posed by the presence of annealed glass in the sliding door giving access to the motel reception. The door had been installed before July 1972 in according with then prevailing legal standards. The work had been done by a licensed building contractor. 227 We do not agree with the trial judge's conclusion that Mr Hancock's attitude "bordered on willed ignorance" (Red 56). There was simply no evidence to suggest that he, any more than his son and daughter-in-law, knew or ought to have known of the danger stemming from the type of glass. 228 Standards of what is reasonable may evolve (Jones at 185[58]). However, the plaintiffs point to no evidence showing general knowledge or practice that might support a finding that failure to commission a safety audit and/or replace the annealed glass was negligent in the circumstances. 229 It was not suggested to Mr Hancock snr, when he was cross-examined, that he knew or should have known of the presence of annealed glass, the risks associated with it or any evolution in building standards that would have made it reasonable for this matter to have been addressed. 230 We have not overlooked the fact that there were strips on the particular door. This shows that the occupier had some consciousness of the risk that a person might walk into the door if it happened to be drawn closed. (The door had been closed by Mr Anthony Hancock not long before the accident because conditions were windy.) No one suggests that the warning conveyed by reflective strips would necessarily discharge whatever duty lay upon the occupier at the relevant time. But the point of present relevance is that there was at least some advertence to the risk that persons might walk or run into the glass. 231 The critical aspect of the negligence alleged is the failure to perceive that retention of annealed glass in this particular door was an unreasonable response to the risk of personal injury suffered by an inadvertent adult or child crashing into the glass. What was reasonable had to be judged without the hindsight provided by the tragedy that eventuated (see J & V Pesl Pty Ltd v Ray Smith Tractors Pty Ltd [2007] NSWCA 74; (2007) Aust Torts Reports 81-883 at [76]-[80]). And it was to be determined having regard to the totality of matters presenting themselves for the attention of a reasonable owner of the particular premises. 232 Applying these criteria, negligence was not established in our opinion. 233 Hancomatic's submissions sought at times to justify any failure to replace the glass in 1997 on the basis that it was the role of the adult plaintiffs to suggest the refurbishment work needing to be done. We do not accept this point. There is evidence that Mr and Mrs Hancock's brief was confined to "cosmetic" refurbishment. They were, in any event, no more expert that Mr Hancock snr. 234 The refurbishment works in 1997 provided an opportunity for Hancomatic to have replaced the glass but this in itself establishes neither duty nor breach. 235 The plaintiffs cite the report of their expert Dr Ludcke (Blue 935) in support of the proposition that a safety audit that would have revealed the unsafe annealed glass ought to have taken place by 1987. Dr Ludcke stated that a safety audit "is a basic element of an appropriate occupational health and management system". But this assertion is unsourced as to its basis and casts no useful light on the existence or content of a common law duty of care in the particular case before this Court. 236 The appellants advanced additional arguments relating to causation. It is unnecessary to deal with them in the circumstances.

[85]

(4) Hancomatic's written submissions as respondent to the Council's appeals included submissions that supported the judge's conclusion on the timing issue (Orange 41-44). 242 There were strands of reasoning in the court below additional to the finding on the timing issue that were supportive of the indemnity awarded to Hancomatic against the Council. Disentangling them from the timing issue is difficult and relatively unproductive given our disagreement with the primary judge on the timing issue. 243 Since, however Hancomatic supported at least part of the judge's reasoning on the additional matters we shall address them so far as relevant to our conclusion that Hancomatic should pay the Council's costs of the First Cross Claim and of the Council's appeal to this Court. 244 The primary judge held that ss310 and 314 of the Local Government Act 1919 imposed on the Council "a mandatory obligation to satisfy itself that buildings are erected in conformity with the Act and Ordinances" (Red 65, 67). 245 Section 310 relevantly provides: Subject to the provisions of this Act and of any ordinance every building hereafter erected … shall be erected to the satisfaction of the council - (a) in conformity with this Act and the ordinances. 246 The relevant part of s314 states: (1) The council shall consider each application and the plans and specifications accompanying it, and may subject to the provisions of this Act approve, or approve subject to conditions, or disapprove thereof: Provided that -- … (b) the council shall not approve unless it is satisfied that a building erected in accordance with the application plans and specifications, or any modifications thereof which it approves, would be in accordance with the provisions of this Act and the ordinances. 247 In our respectful opinion, these provisions do not bear the interpretation placed upon them by the primary judge (see also Sutherland Shire Council v Heyman at 435, 455-6, 482-3). A council's statutory role in approving building plans is not expressed to dispense with the builder's statutory obligation to comply with the Ordinances. 248 We do not pause to analyse the point further given that the ultimate finding by the judge was that the Council was "under a duty to notify [Hancomatic] at the time of 'approval' of the motel section of the requirements of Clause 44C" (emphasis added) (Red 68). For reasons set out above we do not accept this formulation of a duty of care. 249 There could not conceivably be an obligation to draw attention to a provision (like cl 44C) that had no application to building work approved and completed before its making. 250 These observations touch upon both arms of Hancomatic's Cross Claim. They show that any suggestion that the Council owed duties of care to either Hancomatic or the plaintiffs with reference to an ordinance that had not even been gazetted at the time of the relevant building approval is quite untenable. 251 Whether an approval conferred a vested right to proceed in accordance with the law prevailing at the time would depend on the terms of the approval and of any subsequently enacted law impacting upon the matter. It is unproductive to explore these matters given the narrower bases of the judgment under appeal. 252 There are many additional difficulties with the Cross Claim, as the Council points out in its written and oral submissions in this Court. It is quite unproductive to address them all, given that the conclusions of the primary judge referable to the Cross Claim cannot be supported for the reasons we have already advanced. 253 There are hints in the pleading of the First Cross Claim that the Council owed and breached duties of care referable to supervision of the building work, independently from alleged duties touching its building approval role. We include in this regard the general allegation in para 5(c) in the Cross Claims that the Council was responsible for inspecting building work for compliance with the terms of any development consent and/or building permit issued by it. Nevertheless, Hancomatic pleaded as against the Council that the relevant building approval was granted in or about August 1971 (paras 9, 12-12B). The shopping complex was in fact approved on 26 August 1971. In these circumstances, later allegations in the Cross Claim that the Council had some duty of care to ensure during 1973 that building work completed after 1 July 1972 complied with cl 44C or to inspect building work in 1973 (paras 14-15) appear to have no basis in pleaded fact, let alone proven fact or law. 254 The submission that the Council owed a duty of care independent of the approval role towards Hancomatic to stop Hancomatic breaching whatever statutory duty fell upon Hancomatic with regard to the installation of glass is not an attractive one. Furthermore, nothing was alleged, let alone proved, as to some situation in which a Council officer gave advice to Hancomatic about the glass being installed.

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Judgment (92 paragraphs)

Cases Cited (23)