Abstract

In Leichhardt Municipal Council v Montgomery, the High Court of Australia was faced with two important questions. It was required to rule on whether a roads authority owes a non delegable duty to a pedestrian using the road. The Court refused to recognise such a duty. It was also invited to comment upon the fundamental nature of the non delegable duty. A majority of the Court ruled that the non delegable duty is not a freestanding tort, but rather a doctrine of strict liability arising in cases of negligence. This case note critiques the model of liability adopted by the Court and argues that the non delegable duty is best seen as an independent tort of strict liability.