Voli v Inglewood Shire Council

110 CLR 74

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(Judgment by: WINDEYER J)

Between: VOLI
And: INGLEWOOD SHIRE COUNCIL

Court:

Judges: Dixon CJ

Windeyer JOwen J

Subject References:
Negligence
Architectural plans
Approved by Government Department
Dangerous premises built from plans
Injury
Liability
Apportionment

Hearing date: BRISBANE 7 September 1962; 10 September 1962; 11 September 1962
Judgment date: 29 May 1963

MELBOURNE

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Judgment by:
WINDEYER J

This is a case of some difficulty. And it is of considerable importance, not only to the parties, but also because there are other actions pending arising out of the same events. Moreover, it raises questions of law of general importance for architects and the trustees of public halls. The appellant, Luigi Voli, is a tobacco grower and a member of the South Queensland Tobacco Growers' Co-operative Association Limited, a body corporate which it will be convenient to call "the Association". On 11th April 1959 the members of the Association met in the Memorial Hall at Texas, a town near the southern border of Queensland. Texas is in the Shire of Inglewood, the Local Authority for the purposes of the Queensland Local Government Acts being the Inglewood Shire Council, which is hereafter called "the Council". The meeting in April 1959 was the annual meeting of the Association at which office bearers were to be elected. The election was contested, and the vote was taken by ballot. The ballot box was on a table on the stage of the hall. The returning officer, a Brisbane accountant, sat at the table. Members of the Association came up from the body of the hall on to the stage to cast their votes. A number of them had gathered on the stage awaiting their turns to go to the table, when suddenly the stage gave way. Many, some fifty or more, of those who were on it, the appellant being one, fell into a room below. Several of them, including the appellant were hurt. The appellant was taken to hospital where he remained for two weeks. He has some degree of permanent disability of his right arm as a result of the accident. He brought an action in the Supreme Court of Queensland against the Council alleging negligence on its part as the owner of the hall. The hall, which was built for the Council, had been finished only about a year before the accident. After the action had been commenced an order was made giving the plaintiff, the appellant here, leave to add as defendants R. H. Lockwood, who is one of the respondents, and J. L. McLucas. Lockwood was the architect whom the Council employed to design the hall and to supervise its construction. McLucas was the builder. The action came on for trial before the late Brown J. His Honour assessed the damages that the appellant, the plaintiff, had suffered at the sum of PD1,531 11s. 6d. Then, after a most careful review of the evidence and a thorough analysis of the legal arguments, he found in favour of each of the three defendants. Briefly stated, his conclusions were that the architect, Lockwood, although negligent in designing the stage, was not liable as his plans had been approved by the Public Works Department: that the builder, McLucas, was not liable as he had apparently built the stage according to the architect's plans and specifications, and no negligence on his part was established: that the Council was not negligent, either as invitor or otherwise.

The appellant brings this appeal from that decision so far as it exonerated the Council and the architect. There is no appeal from the judgment in favour of the builder McLucas.

The essential facts on which the matter turns may be stated fairly briefly. The proposal for building the hall began in 1952 when a local committee in Texas raised some money towards the cost of erecting a hall to be a war memorial and to serve the ordinary purposes of a local community hall. The Council took over the project. It arranged that it be financed in part by a grant from the State under a scheme by which the State agreed to subsidize the building of a Shire Hall. A condition of getting this financial assistance was that the Treasury should approve the project. To enable it to do so, the plans had to be submitted to the Public Works Department and to the Department of Health for approval before the work was commenced. In December 1952 Mr. Lockwood was appointed by the Council to prepare plans and specifications for the hall. He is a qualified architect. He graduated in architecture in the University of Sydney in 1936 and he is a member of the Royal Australian Institute of Architects. He had, at the time he was retained, been practising at Inverell in New South Wales for some years and had had experience in designing halls and similar buildings. His general competence was not questioned, although in the present case he made an unfortunate mistake. For a variety of reasons, largely associated with the need to accommodate the original desires to the money available, the plans and specifications and bills of quantities were not complete until May 1955. They were then sent by the architect to the Council, together with engineering drawings. The plans were sent to the Treasury in June with a letter from the Town Clerk of the Shire saying that they had been "adopted" by the Council. The Department of Public Works returned them with a statement that they were "in general satisfactory but before approval can be given the architect is requested to give attention to the following items", and a number of matters were set out. It seems that at that time the Council had for some reason not sent on the engineering drawings. However later, as a result of further correspondence and interviews, various modifications required by the Department were made in the plans. In a revised form they were finally approved, and payment of the subsidy was authorized. In August 1956 Lockwood was formally appointed by the Council to supervise the construction of the building. The builder chosen was McLucas. Work began sometime towards the end of 1956. The building was not complete until April 1958.

The cause of the collapse of the stage was not any deterioration in the structure caused by the passage of time. It was simply that the joists supporting the flooring of it were not, having regard to their span, strong enough to carry the load that was upon it. This load, however, was not greater than such a stage might reasonably be expected to bear. How many people were upon it at the time it collapsed is uncertain. The evidence on the point is inconclusive. The estimates of the witnesses varied greatly. There may have been over a hundred people there. But it is not suggested that the stage was overcrowded. And those who were there were, the learned trial judge expressly found, behaving in an orderly fashion. The architect had no express instructions as to the number of people whom the stage should be designed to accommodate. But he was not without guidance, for the Council's by-laws required that such a stage should sustain a minimum weight of 150 pounds per superficial foot. The area of the stage was approximately 535 square feet. From the back to the front it measured 14 feet and from side to side approximately 37 feet 6 inches. The floor of it was supported by cypress pine joists 8 inches x 2 inches, spaced 18 inches apart centre to centre. The clear span of the joists, which ran from the front to the back, was approximately 13 feet 6 inches. All this was exactly in accordance with the plans and specifications.

It seems that a stage so constructed would not safely bear a live load of more than about 91 or 92 pounds per square foot. That is much below the 150 pounds that the Council's by-laws called for. The Australian Standards Association also prescribes 150 pounds per square foot as a minimum. And, of course, the insufficiency of what was provided is demonstrated by what happened. Cypress pine is a timber that has the advantage of not being attacked by white ants. But knots in its sometimes weaken it. Whether or not that operated in this case we do not have to decide. Some evidence on the point was given in an endeavour to implicate the builder. But his Honour found in his favour. The plain fact is that whether or not the central joists were of sound timber, they were not of sufficient size for their purpose. His Honour accepted the evidence of experts to the effect that 12 inches x 2 inches would have been proper. Lockwood said that he specified 8 x 2 for the joists by applying a curious rule of thumb. But he apparently never seriously considered what weight the stage should bear, nor did he calculate what weight it would, as designed by him, in fact bear. He said "I felt there was another authority over me which would tell me if I was wrong". There is no doubt that the fact that his plans were going to the Public Works Department did operate on his mind. But what should have operated on his mind was not that his plans would be revised. It was the need to bring his own professional skill and competence to the task he had undertaken. His obligation was not limited to satisfying the Department so that it would approve a loan. It was to use due care and skill as an architect so that the hall would be soundly designed, secure and safe. Unfortunately the persons who examined the plans in the Public Works Department, although they made comments on other matters, did not notice the insufficiency of the structure of the stage.

Thus the building was taken over by the Council on completion without anyone being actually aware that it had a defect.

The hall was managed for the Council by a committee of local residents. One Sturgeon, a member of that committee, kept the keys, and arranged for its opening when required. He acted apparently more or less as caretaker, and made bookings from time to time for persons seeking to have the use of the hall. The Council charged a fee for its use. On the occasion in question the arrangement that the Association should have the use of it was made by an official of the Association with Sturgeon.

It will be convenient to consider the appellant's case against the second respondent, the architect, before that against the Council.

An architect undertaking any work in the way of his profession accepts the ordinary liabilities of any man who follows a skilled calling. He is bound to exercise due care, skill and diligence. He is not required to have an extraordinary degree of skill or the highest professional attainments. But he must bring to the task he undertakes the competence and skill that is usual among architects practising their profession. And he must use due care. If he fails in these matters and the person who employed him thereby suffers damage, he is liable to that person. This liability can be said to arise either from a breach of his contract or in tort.

In this case, however, the primary question does not arise from the duty that an architect has to his employer. It is whether the respondent architect had a duty to someone not his employer, a person with whom he had no contract at all, a person unknown to him personally whose only relationship with him was that he went into a building designed by him and built under his supervision. In the abstract the question, and it is an important question for architects, is can an architect be liable for negligence to a person who, after a building is finished and has been taken over by the building owner, lawfully enters it and, by reason of faults in its design and construction, comes to harm. Whatever might have been thought to be the position before the broad principles of the law of negligence were stated in modern form in Donoghue v Stevenson, ^[F2] it is now beyond doubt that, for the reasonably foreseeable consequences of careless or unskilful conduct, an architect is liable to anyone whom it could reasonably have been expected might be injured as a result of his negligence. To such a person he owes a duty of care quite independently of his contract of employment. Therefore it is appropriate to ask, as a preliminary question, whether there was a duty of care to the plaintiff in a particular case. This approach has been criticized. It is, on final analysis, the need for care lest someone be injured that both creates the duty and determines what amounts to a breach of it. Nevertheless the conventional division of the inquiry is sanctioned by high authority. And it is convenient, because whether a duty of care arises from a particular situation or relationship may be, and often is, a question of law; but whether or not that duty was performed is ultimately a question of fact, to be judged by what, in the circumstances of the particular case and in the light of the apparent risks, a reasonable man would or would not do. In some situations the courts have not left the latter question wholly at large. They have indicated what ordinarily a reasonable man must do, or not do, to satisfy the duty of care that the situation of the parties has created. But the question is really one of fact. And what an architect must do to avoid liability for negligence cannot be more precisely defined than by saying that he must use reasonable care, skill and diligence in the performance of the work he undertakes.

It is as well to dispose at this point of two incidental matters.

First, neither the terms of the architect's engagement, nor the terms of the building contract, can operate to discharge the architect from a duty of care to persons who are strangers to those contracts. Nor can they directly determine what he must do to satisfy his duty to such persons. That duty is cast upon him by law, not because he made a contract, but because he entered upon the work. Nevertheless his contract with the building owner is not an irrelevant circumstance. It determines what was the task upon which he entered. If, for example, it was to design a stage to bear only some specified weight, he would not be liable for the consequences of someone thereafter negligently permitting a greater weight to be put upon it.

Secondly, the obligation of an architect who designs a building and supervises the building of it is not co-extensive with the obligation of the person who afterwards occupies it. The occupier may be liable for injuries to visitors caused by pitfalls and unusual dangers on the premises, resulting from such things as unlighted obstructions, slippery stairs, unguarded openings. But an architect is not liable merely because an unwarned visitor to the building he designed comes to harm there. It is the occupier's concern, by guarding, lighting, warning or otherwise, to protect persons against unexpected dangers that are there. Such dangers can exist although the premises themselves be well built and suitable for their purpose: see e.g. Bond v South Australian Railways Commissioner. ^[F3] Put shortly, an architect is not ordinarily liable because someone falls down in the building and is injured. He may be if the building falls down and someone is injured.

The respondent, Lockwood, knew the purpose for which the hall was being built, and the use to which it would be put. His duty of care extended to persons who would come there to use it in the ordinary way. Did he use due care and skill in the performance of this duty? That the stage did not answer the requirement of the Australian Standards Association booklet does not of itself establish that he was negligent. But there is no reason for disagreeing with the decision of the learned trial judge that, in fact, he did not exercise due skill and care. He failed to provide in his plans and specifications for a stage that would bear the number of people who might be expected to assemble there. Moreover, the Council's by-law, to which he should have had regard, required that the stage should support a live weight of 150 pounds to the square foot. There was evidence that a competent architect, giving proper attention to the matter, would know that the cypress pine joists as specified would not meet that requirement.

The learned trial judge held that, nevertheless, the architect was exonerated because his plans and specifications had been submitted to the Public Works Department and no objection had been made there to the design and details of the stage. His Honour based his conclusion that this absolved the architect upon the well-known passage in Lord Atkin's judgment in Donoghue v Stevenson, ^[F4] where his Lordship said that a manufacturer's liability for negligence arises when he sells his products "in such a form as to show that he intends them to reach the ultimate consumer in the form in which they left him with no reasonable possibility of intermediate examination". ^[F5] Analysis and discussion of this statement in later cases have established that what is significant is not whether an intermediate examination of the article was possible. It is whether it was contemplated that, in the ordinary course, the article would be examined, or tested, or in some way treated before it was taken into consumption or use. It was argued here that the examination by the Public Works Department was an "intermediate examination". And that, it was said, ended the matter. But this is much too literal an application of Lord Atkin's statement. We must not, as Scott L.J. put it, in Haseldine v C. A. Daw & Son Ltd, ^[F6] fall "into the error of assuming that Lord Atkin was intending to formulate a complete criterion, almost like a definition in the prolegomena to a new theory of philosophy". ^[F7] We were asked to take the language in which Lord Atkin formulated a principle, applicable to cases such as that which he was considering, as if it were as inflexible as a statutory enactment. This is wrong. The case mainly relied upon in the argument, and it was the one on which his Honour founded his conclusion, was Buckner v Ashby & Horner Ltd. ^[F8] There the defendants, who were contractors employed by the Corporation of the City of London, had erected a roof over a passage so that it would serve as an air-raid shelter. They had left a sole plate of timber projecting from the base of an upright. The place was ill-lighted. The plaintiff, in making his way along the passage to premises at the far end, tripped on the sole plate, fell and was hurt. Atkinson J. decided the case on the basis that the principle of Donoghue v Stevenson ^[F9] applied; but he held that, as the contract of the defendants was to do the work to the satisfaction of the Corporation and as the Corporation had passed and accepted the work, the defendants were not liable. He said: "The defendants knew that there would be an expert inspection of their work and that they would not be able to discharge their contractual obligation until after that examination. There was an examination and their work was passed. It may very well be said that the inspection was perfunctory and hurried, but none the less there was an intervening conscious agency which might and should have averted the mischief". ^[F10] In the Court of Appeal the decision was affirmed, principally it seems, on the ground that the effective cause of the accident was insufficient lighting and that the contractors were not required to install lighting, which they could assume would be provided by the Corporation.

In the present case the learned trial judge said: "The fact that there was this examination and check of Mr. Lockwood's plans and specifications in between Mr. Lockwood's preparation of them and the commencement of the work and the unfortunate collapse of the memorial hall and the consequent injury to the plaintiff makes the injury and damage to the plaintiff not sufficiently proximate to the original carelessness of Mr. Lockwood in the preparation thereof for the plaintiff to claim successfully that Mr. Lockwood owed to him a duty of care. It makes no difference in my opinion that the Department of Works might have and indeed should have detected the error of under-designing made by Mr. Lockwood in such an important matter as the design of supporting timber for the stage. The fact that there was an intervening conscious agency, even though not a careful one, relieves the architect from his duty of care towards a person such as the plaintiff with whom the architect had no contractual relationship". The last sentence in particular echoes the words of Atkinson J.

There is, of course, an obvious difference between making or supplying a thing to be examined, tested or treated before use, and making or supplying a thing to be used without more ado. But, when harm ensues, the problem for a court is whether the proximate cause of it was the negligence of the person who made the faulty thing, or the negligence of a person who was to examine, test, or treat it, or the combined negligence of both persons. In some cases, the failure of the person who was to make the test to do so properly, whether he was himself the contemplated user or a third person, may supersede the initial liability of the manufacturer or supplier of the defective article. But, if separate and independent acts or omissions of several persons have directly contributed to cause an injury, the first wrongdoer does not necessarily escape liability by proving that, though he was to blame, the injury would not have occurred but for the later negligence of another person: Grant v Sun Shipping Co Ltd. ^[F11] Whether an ineffective intermediate examination prevents the originally negligent person being liable has therefore been discussed in text books: see Salmond on Torts, 13th ed. (1961) p. 571; Glanville Williams, Joint Torts and Contributory Negligence (1950) pp. 324-326; and also the American decision, Foley v Pittsburgh-Des Moines Co. ^[F12] The problem is one of remoteness; and of finding the cause of the damage in a particular case, not according to some philosophical concept of causation, but "to fix liability on some responsible person" to use the words of Lord Sumner in Weld-Blundell v Stephens. ^[F13] It is a realm in which law and philisophy both meet and part company. But we do not have to decide an abstract moot question. The facts of the present case really do not admit of the conclusion that the architect was freed of liability to persons in the position of the appellant when his plans were approved by the Public Works Department. No doubt the fact that his plans were approved by a public authority may, in some cases, be relevant in considering whether or not an architect was in fact negligent; but that is a very different thing from saying that by obtaining approval in this case the architect shed all liability for negligence. The approval of the Public Works Department was required because the building of the hall was to be financed in part by a subsidy from the State. The State Treasury required that the plans be approved before it would advance the money. But that does not mean that the officers who examined the plans undertook to correct the architect's errors. In his evidence he said "as these plans had to go to a final authority I thought that they should find anything that was untoward and that would be pointed out". It was a not unnatural expectation. But it did not excuse a lack of care.

Turning now to the claim against the Shire Council: this was put in various ways based upon the well-known formulations of the duty of the occupier of premises to visitors who come there in differing rights and for varying purposes. These rules do not of themselves provide a final answer in all cases. In some cases a lawyer thinks at once of Indermaur v Dames, ^[F14] and only later of Donoghue v Stevenson. ^[F15] But, even without the aid of a statute such as now exists in England, the trend of judicial authority has been to treat the liability of an occupier for mishaps upon his premises as governed by a duty of care arising from the general principles of the law of negligence. The special rules concerning invitees, licensees and others are ultimately subservient to those general principles. Instead of first looking at the capacity in which the plaintiff comes upon the premises, and putting him into a category by which his rights are measured, the tendency now is to look at all the circumstances of the case, including the activities of the occupier upon, or in respect of, the premises, and to measure his liability against the conduct that would be expected of a reasonably careful man in such circumstances. The judgments in Commissioner for Railways (N.S.W.) v Cardy ^[F16] provide recent illustrations of this tendency. How the visitor comes to be upon the premises is always an important fact. But it is not necessarily decisive. It seems better to appreciate that the ultimate question is one of fact and governed by general rules, than to create new categories and distinctions.

The hall was built for the Council to serve community needs. It was owned by the Council, and the Council had the general control of it. A person paying the fee that the Council required could obtain permission to have the use of it for a stipulated period of hours. It was spoken of as having been "hired" for that time. A person who thus hired the hall would, of course, normally do so for some purpose involving the admission of other persons. It was formally admitted by the Council that on the occasion with which we are concerned, the Council "hired for reward the said hall to the South Queensland Tobacco Growers' Co-operative Association Ltd for the purpose of holding a meeting of the members of the said Co-operative".

It becomes of some importance, or so it was argued, to decide what legal interests were created by this hiring. That is because a landlord who grants a tenancy of a building ordinarily ceases to be the occupier of it and is relieved of liability in tort for harm that may occur because of its defective condition. For that the tenant becomes liable as occupier. "A landlord who lets a house in a dangerous state, is not liable to the tenant's customers or guests for accidents happening during the term; for, fraud apart, there is no law against letting a tumble-down house; and the tenant's remedy is upon his contract, if any." This statement of Erle C.J., in Robbins v Jones, ^[F17] has been often quoted, notably so in Cavalier v Pope. ^[F18] The decision in the latter case is, on the facts, understandable; for the danger was known to the plaintiff. But pronouncements of a general character in the judgments have not gone unchallenged. "The misbegotten product of a fallacy", Sir Percy Winfield called it: Law Quarterly Review, (1946) vol. 62, p. 315. And he asked, in his work on Tort, "what conceivable difference is there between carelessly putting in circulation a dead snail in a bottle of ginger beer and putting on the market a house so carelessly built as to be likely to cause death or grave injury?" If our law were in all respects coherent and congruous, perhaps the answer would be that there is no difference. Nevertheless, when faced with the suggestion of inconsistency between the rules relating to houses and to snails and suchlike, courts have not thought that the former should give way. Rather it has been said that they can, and appropriately do, stand together. The price or rent of a tumble-down house reflects its condition. Houses are ordinarily inspected before purchase or leasing. And in Donoghue v Stevenson ^[F19] itself Lord Macmillan spoke of Cavalier v Pope ^[F20] as being "in a different chapter of the law". The landlord's immunity thus continues unaffected by the results of the snail's emergence. Doctor Fleming has suggested that since Otto v Bolton and Norris ^[F21] and Travers v Gloucester Corporation ^[F22] it must be "regarded as too firmly entrenched to be open to judicial reconsideration": Fleming, The Law of Torts, 2nd ed. (1961) p. 441. However, Lord Denning has described Cavalier v Pope ^[F23] as a "relic of a worn out fallacy which must be kept in close confinement". He said that in Green v Chelsea Borough Council. ^[F24] There the Court of Appeal held that the limitation upon the liability of a landlord only exists in cases in which the relationship is strictly that of landlord and tenant. It does not exist in the case of a licensor and licensee. One may accept this proposition as correct, while respectfully doubting whether in the facts of that case it was properly applicable. This Court has refused to go on miscalling trespassers licensees as a means of enabling them to escape consequences that might befall them if they were called by their correct name: Cardy's Case. ^[F25] And it has also said that a tenant cannot be deprived of the rights of a tenant by being called a licensee: Radaich v Smith. ^[F26] Misnomers are not, at the present day, to be used as a means for modifying law. But, in this case, there is no misuse of legal language in saying that when the Association hired the hall it did not become a tenant of it; and that the Council did not relinquish possession or control or avoid the responsibilities of an occupier. There are some, not inconsiderable, differences between a whist drive and dance in Dublin and a meeting of tobacco growers in Texas, Queensland. But, allowing for these, the two Irish cases, Kelly v Woolworth & Co ^[F27] and Boylan v The Mayor of Dublin, ^[F28] are somewhat in point. In the latter Black J. said, "Weekly tenancies are common. Can there not be a tenancy for three days, and if so, why not for three hours?". ^[F29] Possibly there could be in some cases. But in this case the letting of the hall to the Association for the purpose of holding its meeting was no more than the grant of a sole licence to have the use of it for a brief time. During that period the Association could, no doubt, decide who, apart from the caretaker or other representatives of the Council, might go in. But that was all. Therefore Cavalier v Pope ^[F30] does not stand in the appellant's way.

Moreover, firmly entrenched positions may be outflanked. Even if the letting of the hall for the meeting did technically create a tenancy, that would not be the end of the matter. That the hall was kept by the Council for the ordinary purposes of a public hall and let out for use for short periods, is a circumstance of overriding importance. It attracts by analogy an ancient principle of the common law concerning things, for example vehicles or boats, kept for hire to the public-a principle that ought not, at this day, to be denied application to buildings and structures merely because they are affixed to land. The matter has been discussed in cases in the United States, especially in the State of New York. There it may be said to be established that a person who lets out property for public purposes, such as an assembly hall, is under a duty to members of the public to see that it is reasonably safe for the purpose for which it is let. The cases are numerous. It is enough to mention Friedman v Richman; ^[F31] Johnson v Zemel ^[F32] and Junkermann v Tilyou Realty Co. ^[F33] In the last-mentioned case Cardozo J., speaking of Cavalier v Pope ^[F34] and the proposition that there is no law against letting a tumble-down house, said: "That statement depends for its accuracy upon many conditions. It is not true if the building is to be used by the public". ^[F35] We may accept that qualification of the general immunity of a landlord, without disregarding authority binding on us. We are not dealing with a building let as a dwelling-house or for similar private purposes. No departure from the tradition of the common law is involved in asking what does the law require of those who keep halls for hire to the public. Of course we must not put their obligations higher than law and good sense combine to demand. Throughout the land there are public halls of varying type, age and size. Some are vested in local authorities, some in trustees; some are managed by schools of arts committees; some belong to church bodies or other voluntary organizations. Those who control them, the occupiers in point of law, are not insurers of the safety of all those who use them. They have, however, a duty of care. And the measure of that duty (where it is not prescribed by statutory provisions for the licensing and inspection of theatres and halls) is in my opinion the same as that laid down in Francis v Cockrell. ^[F36] It is convenient to state the effect of that decision in the words of McCardie J. in Maclenan v Segar, ^[F37] a passage that was quoted by Fullagar J. in his judgment in Watson v George. ^[F38] It runs: "Where the occupier of premises agrees for reward that a person shall have the right to enter and use them for a mutually contemplated purpose, the contract between the parties (unless it provides to the contrary) contains an implied warranty that the premises are as safe for that purpose as reasonable care and skill on the part of anyone can make them. The rule is subject to the limitation that the defendant is not to be held responsible for defects which could not have been discovered by reasonable care or skill on the part of any person concerned with the construction, alteration, repair, or maintenance of the premises .... But subject to this limitation it matters not whether the lack of care or skill be that of the defendant or his servants, or that of an independent contractor or his servants, or whether the negligence takes place before or after the occupation by the defendant of the premises". ^[F39]

That passage, it will be noticed, places the source of the obligation in an implied term in a contractual right of entry upon the premises. And where the plaintiff who suffered an injury had himself paid to go in, the liability of the owner or occupier whom he paid can be rested on breach of contract. In the early decisions it was usually so put. But Martin B. said in Francis v Cockrell, ^[F40] "if you choose to put it in another form, it is the duty of a person, who so holds out a building of this sort, to have it in a fit and proper state for the safe reception of persons who are admitted". ^[F41] Looked at in that way the involvement of contractual elements in an action of negligence, the curiosity on which Fullagar J. remarked in Watson v George ^[F42] largely disappears. For, although in Francis v Cockrell ^[F43] the plaintiff had himself paid to enter the grand-stand, would it have made any difference if a friend had bought his ticket for him? Should a person whose ticket was bought for him by a friend, as they went in together, be in a worse position, if they both be hurt by a collapse of the stand, than the friend who paid for them both? Surely not? Then suppose a person had taken all the places so that he might invite whom he liked, would his guests, injured when the stand collapsed, have had no right of action against those who erected it? The shadow that the requirement of privity of contract in the law of contract has cast upon the law of tort is now dispelled, or almost so. Liability in tort always depends upon proximity of relationship, not on privity of agreement. An early and forceful disapproval of the fallacy of holding otherwise is to be found in the judgment of Richards C.B. in Pippin v Sheppard, ^[F44] given on a demurrer in an action against a surgeon for his negligent treatment of a patient in which the declaration did not allege that he was to be paid by the patient. It is, however, true that to attract a liability according to the principles of Francis v Cockrell ^[F45] it is generally said that the admission of the public to the premises must be for reward to the defendant occupier. But that, it seems to me, is not because the duty is contractual. Rather it is because in such cases the liability is in effect similar to that in the earliest cases on the law of tort, those concerning the common callings, such as carrier, innkeeper, smith. The liability for negligence in cases of that sort arises from want of care in a public business that the defendant carries on. It matters not whether the plaintiff or someone else was to pay him for his services to the plaintiff. For example, in Marshall v The York, Newcastle and Berwick Railway Co, ^[F46] in the Common Pleas there was an emphatic rejection of an argument that a passenger on a railway could not recover in an action for negligence because he had not himself paid for his ticket. And in Wright v Anderton ^[F47] it was held that the common law liability of an innkeeper for the safe custody of goods of guests, in that case members of a hockey team using a room to change their clothes, was not diminished because the room had been reserved and paid for by someone else. It is unnecessary to multiply illustrations. But, as one argument for the Council was that as there was no consideration moving from the appellant to the Council therefore the principle of Francis v Cockrell ^[F48] could not apply, it is worth noticing that as long ago as 1897 the very question arose in a case in New York, Fox v Buffalo Park. ^[F49] There the plaintiff was injured by the collapse of a badly constructed grand-stand. It had been built by a builder, who was an independent contractor, under the supervision of an architect. The only difference from the facts of Francis v Cockrell ^[F50] was that the plaintiff had not himself bought the ticket by which he had got in. Ward J. said: "While it is undoubtedly true in ordinary cases in the leasing of buildings that there is no implied warranty on the part of the lessor that the buildings are fit and safe for the purposes for which they are leased, the rule is different in regard to buildings and structures in which public exhibitions and entertainments are designed to be given, and for admissions to which the lessors directly or indirectly receive compensation". ^[F51] The use of the expression "implied warranty" is characteristic of the period when the case was decided. But the facts show that the liability was not considered as dependent on privity of contract between the plaintiff and the defendant, but upon the fact that the defendant's business was keeping premises for hire to the public.

It is possible to suggest that in the case before us the Council had a contractual obligation to the appellant, by treating the Association, the actual hirer of the hall, as contracting as agent for all its members. But it is not necessary to resort to this uneasy artificiality to establish the appellant's right of action.

It is unnecessary to consider whether if the hall had been let gratuitously, as for example for some charitable purpose, the liability of the Council to those entering would be any different from the liability to the appellant in this case. Such a situation would invite a comparison with the case of a building kept for the free use of the public generally, such as a structure in a park, which people enter as of common right, and also with buildings such as churches, which all members of the congregation may enter without payment. It is not necessary to go beyond the facts of this case.

In cases of this sort the occupier's liability depends, of course, upon proof of negligence on the part of someone. He is liable only for the consequences of negligence, either his own negligence or the negligence of someone employed by him. But the case is one of those in which an employer remains liable to third parties for the consequences of the negligence of an independent contractor, just as he would be if it were his own negligence or that of his servant. This is merely one situation where this obtains. Another is the obligation that an employer has to provide a safe system and conditions of work for his employees. Lord Blackburn's statement in Dalton v Angus ^[F52] is generally taken as a starting point: "Ever since Quarman v Burnett ^[F53] it has been considered settled law that one employing another is not liable for his collateral negligence, unless the relation of master and servant existed between them. So that a person employing a contractor to do work is not liable for the negligence of that contractor or his servants. On the other hand, a person causing something to be done, the doing of which casts on him a duty, cannot escape from the responsibility attaching on him of seeing that duty performed by delegating it to a contractor. He may bargain with the contractor that he shall perform the duty, and stipulate for an indemnity from him if it is not performed but he cannot thereby relieve himself from liability to those injured by the failure to perform it". ^[F54] The statement is clear. The difficulty is to know when it is applicable. It has become somewhat the fashion to speak of delegable and non-delegable duties. But apart from true instances of strict liability, the distinction between delegable and non-delegable duties does not, it seems, really amount to more than the adoption of convenient headings for those cases in which defendants have been held not liable for the negligence of independent contractors and cases in which they have. It suffices to quote from Viscount Simonds' speech in Riverstone Meat Co Pty Ltd v Lancashire Shipping Co Ltd ^[F55] where his Lordship said: "No one, I think, doubts that in some circumstances a defendant can escape liability for the negligence of an independent contractor; nor could he doubt that in other circumstances he cannot so escape, for he would be faced by such authority as Grote v Chester & Holyhead Railway Co, ^[F56] Wilkinson v Rea Ltd, ^[F57] and Francis v Cockrell. ^[F58] I do not think it necessary to try to reconcile all the cases on this subject". ^[F59] We need not here attempt what his Lordship there did not. All that we need do is say whether or not the defendant Council here is liable for the negligence of the architect, an independent contractor. For reasons given above, I think that it is. Although analogies ought not to be pushed too far, Grote v Chester & Holyhead Railway ^[F60] to which Viscount Simonds referred, and on which counsel for the appellant rightly relied, has points of similarity. There a railway bridge collapsed. The defendant company had constructed and owned the line and bridge. An arrangement existed between it and another railway company whereby that other company paid for and had a licence to run its trains over a part of the defendant's line which included the bridge. The plaintiff was a passenger in a train of that other company when he was injured by the collapse of the bridge. There was thus no contractual relationship between him and the defendant. Pollock C.B. said that "if a party in the same situation as that in which the defendants are, employ a person who is fully competent to do the work, and the best method is adopted, and the best materials are used, such party is not liable for the accident" (2). On the other hand he added: "It cannot be contended that the defendants are not responsible for the accident merely on the ground that they have employed a competent person to construct the bridge". ^[F61] The defendants had in fact engaged "an eminent engineer" to construct the bridge.

We can, however, discard altogether the analogy with cases of that sort; and, instead of looking upon the appellant as coming upon premises to which the occupier admitted people for reward, we can regard him simply as a gratuitous invitee, in the legal sense of that word. Still substantially the same result follows. That the appellant was an invitee, not a mere licensee, can hardly be doubted. The business of the Council in respect of the hall was keeping it for hire. The presence of the tobacco growers on the occasion in question was "in a general way ancillary to the business carried on by the occupier"; and that was enough to make them invitees: Lipman v Clendinnen. ^[F62] In Leveridge v Skuthorpe ^[F63] a girl who was hurt at the Coonamble School of Arts hall, which she was helping in the afternoon to decorate for a concert to be held at night, was held to be in the position of an invitee.

The standard of duty of an occupier towards an invitee is to use reasonable care to prevent his coming to harm from an unusual danger of which he, the occupier, knows or ought to know and of which the invitee does not. It was argued for the Council that, although admittedly the insecurity of the stage was an unusual danger, it was not something of which the Council knew or ought to have known: the Council had employed a competent architect: it could not be said it ought to have known that his work was faulty and that the stage might collapse. This is a plausible argument. But it does not meet the case. It depends upon an assumption that, because the architect was an independent contractor and an expert, not a servant of the Council, the Council could not be liable to an invitee for the consequences of his negligence, that it could not be said that the Council ought to have known what he ought to have known. But this is not so. The architect's negligence was not in some casual or collateral act. It was in the performance of the very work that he was employed to perform. It comes back to the same question. Is the case one of those in which there is vicarious liability for the fault of an independent contractor? In Thomson v Cremin ^[F64] Viscount Simon, with whom Lord Romer concurred, and Lord Wright expressly approved the decision of Luxmoore L.J. in Wilkinson v Rea Ltd ^[F65] that the duty of an invitor to an invitee cannot be escaped by delegating its performance to an independent contractor. Admittedly Thomson v Cremin ^[F66] has had an unusual history. For twelve years it remained unreported except in Lloyd's List Reports; and its place in the law of torts was therefore not appreciated until it was brought to notice by Mr. Heuston in his, the eleventh, edition of Salmond on Torts (1953): see Law Quarterly Review (1954) vol. 70, p. 246. Then, within a few years, its apparent effect was largely abrogated in England by the Occupier's Liability Act, 1957, s. 2 (4) (b). Meanwhile it had been sought to apply it in another field, the duty of a master to care for the safety of his servants: Davie v New Merton Board Mills Ltd. ^[F67] Whereupon Lord Reid was at pains to explain it, somewhat drastically. He dismissed as dicta the remarks about the responsibility of an invitor for the negligence of a contractor. In New Zealand too it has been explained and distinguished: Lyons v Nicholls. ^[F68] Nevertheless it stands as a decision of the House of Lords. And it is, for more than one reason, relevant for the determination of this case. First, the argument that was rejected in the House of Lords, that liability for negligence did not arise because the contractor's work had been approved by a government inspector, was not unlike the argument in this case that the approval of the Public Works Department was an answer to the appellant's claim. Secondly, there is no legislation in Queensland like the English Occupier's Liability Act, 1957. The observations by their Lordships about the inescapable duty of an invitor thus remain important. They may not be of general application; but in some kinds of cases they are definitive. Is this one of them? As the decisions of the Court of Appeal stand at present, there is no absolute rule. It is not enough to find that a plaintiff was an invitee. Haseldine v C. A. Daw & Son Ltd, ^[F69] stands on one hand; Woodward v Mayor of Hastings ^[F70] on the other. In each of these cases an occupier employed an independent contractor. In the first, the contractor was a firm of skilled electricians employed to repair a lift; in the other, a charwoman employed to sweep the snow off steps at a school. For the negligence of the electrician the occupier was not liable to an invitee; for the negligence of the charwoman he was. The distinction in point of policy and on the differing facts may be clear. Its formulation as a matter of law is not easy. Lord Hodson in the Riverstone Meat Company's Case, ^[F71] suggested that it may have to be re-considered. The Council, of course, had to employ an architect. Its own engineer would not, one may assume, have been able to undertake the work even if the Council had wished it. Nevertheless the Council is not like a person who employs a contractor because he does not himself understand what is required and is unable to check what is proposed or examine what is done.

It is necessary now to turn to some provisions of the statute law of Queensland. These are important for two reasons. First, they reinforce the conclusion that the duty which the common law puts upon a person building a building for letting to the public is to make it as safe for its purpose as by the exercise of reasonable care on the part of himself, his servants, agents and contractors it can be made. Secondly, the statutory provisions prescribe certain functions and duties to be performed by the Council. No claim was made that the Council had incurred any liability for breach of any statutory duty. But the learned trial judge rightly considered whether or not the Council did bring or should have brought its by-laws specifically to the attention of the architect. He concluded that it did not do so; and rightly said that it was not negligent in not doing so as it is an architect's duty to make himself acquainted with local building regulations. The general allegations in the statement of claim of negligence on the part of the Council, however, make it necessary to consider what it did or might have done as an element in determining how far it can be responsible for, or implicated in, the negligence of the architect.

The Local Government Act (Queensland) s. 40 (1) provides that: "Every building which is used as a place of public amusement or public resort shall, to the satisfaction of the Local Authority (in this case the Shire Council) be substantially constructed and supplied with ample, safe, and convenient means of ingress and egress for the use of the public, regard being had to the purposes for which such building is or is intended to be used, and to the number of persons likely to be assembled at any one time therein". And, in the case of a building let for any period less than a year (which is the case here), the owner who fails to comply with these requirements is liable to a penalty: s. 40 (4). The Shire Council was itself the owner of the building; and it was, it seems, to its satisfaction substantially constructed. The enactment is thus in this case indicative of a duty rather than decisive of its breach. But it is significant of the nature of the duty, and the more so when the Council's by-laws are looked at. The Local Government Act, s. 31 (27), provides that those by-laws- having been duly made by the Council, approved by the Governor, and published in the Gazette- have the same force and effect within the Shire as if they have been enacted in the Act. By-law No. 4 deals with buildings. Among its requirements are the following. Plans, sections, elevations, specifications and detailed drawing of buildings to be erected must be submitted to the Council. They must be handed by the Shire Clerk to the engineer, who must investigate each application and report thereon to the Council (par. 4). If the engineer is of opinion that a proposed building will not conform with the by-laws, the Council may withhold its approval (par. 6). Buildings intended to be used for public or business purposes must conform with certain specific requirements (pars. 45 and 46). These include: "All structural timber shall be of such size and dimensions as the purposes for which the building is intended require" (par. 47); "On floors of theatres, ballrooms, churches, public buildings and all areas subject to the load of moving crowds, a minimum weight of one hundred and fifty pounds per superficial foot ..."; "Notices shall be posted in buildings of the above class, stating the weight that each superficial foot of floor will safely sustain; such notices to be kept intact by the building owner". There is no evidence of any attempt to comply with the last requirement. Had the Council directed its attention to the need for such a notice, presumably it would have become apparent that the stage would not bear the weight the by-laws required. The by-laws do not apply to "Government buildings" (par. 42); but the Shire hall was not a government building. Section 39 of the Act provides that a building shall not be erected or used in contravention of the Act; and any building so erected or used is "an unlawful building". The Act and by-laws together illustrate and emphasize the special requirements of safety that attach to the erection of a "public building".

On the whole case the Council must be held liable; vicariously, for the negligence of the architect it employed; and directly, because of the failure of its officers, who in fact examined and approved the plans and specifications, to ascertain whether by-laws in respect of public buildings had been complied with.

The next question then is, both respondents being liable to the plaintiff, how are the damages to be borne? The question arises for determination in this action because a notice was given by the Council to Lockwood claiming contribution pursuant to The Law Reform (Tortfeasors' Contribution, Contributory Negligence and Division of Chattels) Act of 1952 (Q.). The principles that would be applicable apart from the statute are clear enough. When joint tortfeasors are sued together, only one judgment can be given against them, and the damages cannot be severed. But an employer who is vicariously liable for the negligence of an employee whether agent, servant, or contractor, can recover from that negligent employee such amounts as he has been adjudged liable to pay, and has in fact paid, to the person injured. This right arises from the implied contractual undertaking of the employee to the employer to act carefully in the performance of his employer's business: Lister v Romford Ice & Cold Storage Co Ltd. ^[F72]

In the present case the Council was liable for the consequences of the architect's negligence. If the Council were liable only vicariously and were itself otherwise free of blame, it seems that it would be entitled to recover from the architect any sum that it was liable to pay, and in fact paid, to the appellant as damages. But the Council was not itself free from blame in the matter. It was itself negligent, by its servants, in passing and accepting the architect's plans and specifications without further inquiry or examination than was made. To evaluate the respective degrees of departure from the standard of reasonable care is not easy. But, on the whole, it appears just and equitable, having regard to the responsibility of each for the accident, that the Council and the architect should bear the damages equally. The learned trial judge's assessment of the amount of the damages actually sustained by the appellant should stand. It was not challenged. Both the respondents are liable for this sum.

The Supreme Court ordered that the plaintiff, the appellant, should pay the costs there of the defendant McLucas. McLucas is not a party to the appeal; but the appellant asked that, in the event of his appeal succeeding, he should be relieved of his liability to McLucas for costs and that McLucas' costs should be paid by one or other of the respondents. When the action was commenced the Council did not admit liability. Lockwood and McLucas were added as defendants. The Council then claimed that if it were liable it had a right to recover from McLucas any damages that it was called upon to pay. But as, in my view, the Council is liable, and as the action against McLucas failed, the circumstances have some resemblance to those that determined the form of the order in Johnsons Tyne Foundry Pty Ltd v Maffra Corporation. ^[F73] In my opinion the Council should pay the costs of McLucas of the proceedings in the Supreme Court.