Stoneman v Lyons [1975] HCA 59; (1975) 133 CLR 550 (17 December 1975)

HIGH COURT OF AUSTRALIA

STONEMAN v. LYONS [1975] HCA 59; (1975) 133 CLR 550

Building and Construction - Tort

High Court of Australia
Barwick C.J.(1), McTiernan(2), Gibbs(3), Stephen(4) and Mason(5) JJ.

CATCHWORDS

Building and Construction - Contract - Construction excavation in vicinity of building on adjacent land - Whether builder authorized to dig trench and excavate pockets under building without authority of architect - Collapse of adjoining building - Liability of owner of construction site - Building regulations requiring underpinning of adjacent building - Whether directed to builder or owner - Uniform Building Regulations (Vict.), reg. 1604.*

Tort - Trespass - Negligence - Excavation in immediate vicinity of building on adjacent land - Trespass by independent building contractor - Whether owner of construction site liable - Collapse of building - Ultra-hazardous activity - Whether owner of construction site negligent - Building regulations requiring underpinning of adjacent buildings - Whether breach founds private right of action.

* Regulation 1604 of the Uniform Building Regulations (Vict.) provided, so far as is material: "Protection of Adjacent Property - (a)(i) Where excavation or demolition is to be made in proximity to an existing building, the walls of such building shall be shored and/or underpinned and/or protected as may be necessary to ensure stability."

HEARING

Melbourne, 1975, February 18-20;
Sydney, 1975, December 17. 17:12:1975
APPEAL from the Supreme Court of Victoria.

DECISION

December 17.
The following written judgments were delivered:-
BARWICK C.J. I have had the advantage of reading the reasons for judgment has written and with the conclusion which he has reached. For the reasons my brother Mason expresses, I would allow the appeal. (at p553)

McTIERNAN J. This is an appeal from a decision of the Full Court of the Supreme Court of Victoria (Pape, Menhennitt and Nelson JJ.) [1974] VicRp 95; (1974) VR 797 dismissing an appeal from Lush J. The present respondents were the plaintiffs and the appellant was the defendant in the action. The respondents owned land in Echuca in Victoria, along whose western boundary stood the double brick cavity wall of the respondents' building. The appellant owned the land adjoining the western boundary of the respondents' land and intended to build a supermarket thereon. To that end he retained a firm of architects to design a building for him, and entered into a contract with a builder for the construction of the supermarket. The architects and the builder were defendants in the action but are not parties to this appeal. The architects designed the building and prepared drawings and specifications and the builder commenced work on the project. (at p554)

2. A brief description of what happened thereafter is found in the reasons for judgment of the Full Court which I quote (1974) VR, at p 798 :

"One son of the builder who was in substance the works
foreman and another son who was also an employee of his
father commenced work on the foundations for the supermarket
and in fact dug a trench along the length of the
boundary of the appellant's property adjoining the respondents'
property and also dug a number of pockets underneath
the adjoining wall on the respondents' property. This they did
with the authority of their father the builder. The digging of
the trench commenced on Monday and the pockets which
were possibly commenced late on the Wednesday were dug
on the Thursday and Friday of that week. On the next day,
a Saturday, rain fell and at 10 o'clock that night the western
wall of the respondents' property collapsed bringing down
with it roof trusses which ran across the building, thereby
causing extensive damage. This resulted in damage to the
respondents which was found by the learned trial Judge to be
$20,513.35.

In the action the respondents originally sued the architects
and the builder and the appellant was subsequently joined as
a defendant. The builder died before the action came on for
trial and the action against him was regarded as having
abated and no relief was sought on the trial against him or
his estate. The claim against the architects was in negligence.
His Honour dismissed that claim. The architects were joined
by the appellants as respondents to this appeal but on the
second day of the hearing the appeal against the architects
was by consent dismissed.
The claim against the appellants was pleaded for breach of
statutory duty namely the duty imposed by the Uniform
Building Regulations, negligence, trespass and withdrawal of
support. His Honour found that the appellants were liable
to the respondents both for breach of the Uniform Building
Regulations and in trespass and gave judgment against the
appellant for $20,513.55 '(sic)' and $2,500 damages in the
nature of interest and costs. It is against that judgment that
the appeal is brought." (at p555)

3. The Full Court dismissed the appeal, finding in favour of the respondents on the statutory duty ground, but not coming to a decision on the allegations against the appellant on the grounds of negligence and trespass. The appellant has appealed to this Court on the following grounds:

"1. The Court should have held that the appellant (a
building site owner) was not liable to the respondents (occupiers
of adjoining land) for damage caused by illegal and unauthorized
excavations by an independent contractor, committed
in breach of a building contract with the appellant.
2. The Court was wrong in holding that reg. 1604 of the
Uniform Building Regulations of the State of Victoria gave
the respondents a cause of action for a civil claim against
the appellant.
3. The Court was wrong in holding that the appellant was
in breach of reg. 1604 and that the breach caused loss or
damage to the respondents.
4. The learned Judge was wrong in holding that the appellant
was liable to the respondents for trespass by an independent
contractor and that the trespass was a hazardous
operation which was part of an enterprise undertaken by the
appellant.
5. The judgments and orders of the Full Court and the
learned trial Judge were wrong in law.
6. The said judgments and orders were against the evidence
and the weight of evidence." (at p555)

4. The material provisions of the specifications prepared by the architects and included in the contract are as follows:

Clause B1.01 - General.
"... The projecting foundation footings and eaves gutters
to adjoining building on east boundary are to be demolished
to make way for new building.
The underpinning work and formation of new box gutter
to replace eaves gutter are specified where applicable."

Clause B2.02 - Excavate.
"Excavate as may be necessary to the grades and levels
indicated on the drawings and as may be required for all
areas below ground level and for the footings of all walls,
piers, columns, stumps, slabs etc. to the widths, depths and
extent shown on or implied by the drawings.
All the excavations must be taken down to solid bottom
and all loose or soft earth must be removed from the
excavations."

Clause E4.01 - General.
"Allow in tender the Prime Cost Sum of Two Thousand
Seven Hundred Dollars (see 'R' Prime Cost Schedule) dollars
($2,700.00) for underpinning of walls to adjoining property
on east boundary. Work to be carried out only on the authorisation,
instruction and supervision of Architects or Engineers." (at p556)

5. The specification provided that the contract between the builder and the proprietor would also include inter alia Addendum A of the Printed Articles of Agreement and Schedule of Conditions of Lump Sum Building Contract, 4th ed., issued under the sanction of the Royal Australian Institute of Architects and the Master Builders' Federation of Australia. (at p556)

6. Clause 57 of Addendum A reads:

"Protection.
The Builder at his own discretion shall at all times do
everything prudent or necessary to ensure the safety and freedom
from injury, damage or interference of all the adjacent
public or private lands, properties, ways, services and all
other adjacent real or personal property whatsoever and of
persons at any time in the vicinity of the site, and in particular,
and without affecting the generality of the foregoing,
shall carry out and provide such shoring or other forms of
support, shielding, fencing and other protective and precautionary
measures as may be necessary for any of the purposes
aforesaid. In the event of underpinning of adjoining
property becoming necessary for any of the aforesaid reasons
the Builder shall notify the Architect and receive instructions
before proceeding with any work affected." (at p556)

7. Regulation 1604 of the Uniform Building Regulations made under ss. 925 and 926 of the Local Government Act 1958 (Vict.) is in the following terms:

"1604. Protection of Adjacent Property -
(a) (i) Where excavation or demolition is to be made in
proximity to an existing building, the walls of such building
shall be shored and/or underpinned and/or protected as
may be necessary to ensure stability;
(ii) where the foundation of an existing building is of
material likely to become unstable as a result of the excavation
of adjoining ground additional precautions shall be
taken to ensure its stability;
(iii) underpinning shall be in conformity with the requirements
of clause 2014.
(b) Where the foundation of an existing building consists
of hard stable rock the requirements of sub-clause (a) relating
to underpinning may be dispensed with." (at p556)

8. The learned primary judge stated the questions at issue in the action against the present appellant on the statutory duty count in the following terms:

"The first is whether these regulations give rise to a cause
of action to enforce a civil liability, and the second is whether
if the plaintiff succeeds on the first point Stoneman as the
proprietor of the proposed building was in breach of the
regulations." (at p557)

9. On the first question his Honour concluded:

"it appears to me both as a matter of authority and as a
matter of principle that the regulation here in question, 1604,
is a regulation upon which a civil claim can be based. The
effect of that regulation is to bring into existence a substantial
extension of the common law protection given to land and
buildings against deleterious activities on adjoining land. The
common law right gave rise to a right of action when it was
infringed and I find it difficult to contemplate any other construction
than that this regulation extending the common law
protection given to the land owner was intended to give rise
to a cause of action similar to the cause arising from infringement
of the common law right." (at p557)

10. On the second question his Honour concluded that "the regulation creates the kind of obligation which cannot be fulfilled by delegation" therefore Stoneman as the proprietor of the proposed building was in breach of the regulations - Dalton v. Angus & Co., per Lord Blackburn who said "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." (1881) 6 App Cas 740, at p 829 The learned primary judge continued:

"the regulation confers a right of civil action in extension
of the common law right, the common law right was primarily
a right against the land owner on whose land the deleterious
operations were carried out. It may be that the correct classification
of the second ground as I have described it is that it is
really an explanation of the first. There is I think a third
ground for taking this view, and that is by analogy to the
liability of the building owner damage resulting from hazardous
enterprise undertaken through an independent contractor,
and I shall deal with that shortly.
Accordingly, I hold that a cause of action arises out of
breach of the Uniform Building Regulations and I hold that,
despite the fact that Stoneman engaged an independent contractor
who did the offending work without Stoneman's
knowledge, Stoneman himself is in breach of the regulation
and accordingly liable for the damage which flows. It has
not been disputed in this case that what was done was a
breach of the regulations." (at p557)

11. The plaintiffs had also argued at first instance that the damage to their building resulted from a trespass carried out under the plaintiff's ground, that that trespass was part of a hazardous operation which in turn was part of an enterprise undertaken by Stoneman, and that the fact that an independent contractor was employed does not relieve Stoneman from liability. The learned primary judge held "that all the steps in the plaintiffs' argument on this ground are valid". He said:

"I find that the wall collapsed as a result of the combined
operations of three factors. One was that the trench had been
dug along the whole of its length to a level below the bottom
of the footings of the plaintiffs' wall. The second was that the
pockets had been dug under the wall in a fashion which was
grossly unskilled, and the third was, of course, the rain. If the
trespass was, as I find it was, a significant contributing cause
of the ultimate damage, then in point of law that ultimate
damage is regarded as a consequence of the trespass and the
trespasser is liable." (at p558)

The judge relied on a passage from the decision of Cockburn C.J., Mellor and Field JJ. in Bower v. Peate (1876) 1 QBD 321, at p 326 :

"The answer to the defendant's contention may, however,
as it appears to us, be placed on a broader ground, namely,
that a man who orders a work to be executed, from which,
in the natural course of things, injurious consequences to his
neighbour must be expected to arise, unless means are adopted
by which such consequences may be prevented, is bound to
see to the doing of that which is necessary to prevent the
mischief, and cannot relieve himself of his responsibility
by employing some one else - whether it be the contractor
employed to do the work from which the danger arises or
some independent person - to do what is necessary to prevent
the act he has ordered to be done from becoming
wrongful. There is an obvious difference between committing
work to a contractor to be executed from which, if properly
done, no injurious consequences can arise, and handing over
to him work to be done from which mischievous consequences
will arise unless preventive measures are adopted."

He then continued:

"The Court in that passage was putting aside the provision
in the contract under consideration by which the builder
undertook the responsibility for support and was simply saying
that the situation was one in which the building owner
could not relieve himself of responsibility by making a contract
with someone else. That case was itself a case involving
the right of support between adjoining land owners. It was
wholly approved in the famous case of Dalton v. Angus
(1881) 16 App Cas, at p 791 .
See also Johns v. Delaney (1890) 16 VLR 729 ."

The learned primary judge then said:

"But the classification of the contract I think is a matter of
fact not to be determined simply by reference to authority.
In the present case, judging the situation as well as I am able
to do as a layman, and using such experience as I have in this
class of matter, and using the undisputed evidence of Dr.
Allen, I would have no hesitation in classing the situation and
the contract which I have to deal with here, as a situation
and a contract from which mischievous consequences would
arise unless preventative measures were adopted. The result
of that classification is that the landowner whose enterprise
it was that gave rise to the loss is liable." (at p559)

12. The learned primary judge in my opinion was right in the conclusions he reached on all the questions at issue. (at p559)

13. On the statutory duty count, one must come to the conclusion that the Local Government Act "empowered the making of regulations which gave civil rights and imposed civil duties and that reg. 1604 did so is the legal situation", to quote from the learned Judges of the Full Court. This conclusion is supported by the decision of the New South Wales Court of Appeal in Anderson v. Mackellar County Council, per Jacobs J.A. (as he then was) (1968) 69 SR (NSW) 444, at pp 447-448 . (at p559)

14. On the authority of Dalton v. Angus (1881) 6 App Cas 740 I would agree with the learned primary judge and come to the conclusion that Stone-man as proprietor of the proposed building was in breach of the regulations. (at p559)

15. On the question of the trespass I agree with the conclusion of Lush J. and would not depart from the learned primary Judge's interpretation of Bower v. Peate (1876) 1 QBD 321 . (at p559)

16. I would dismiss the appeal and affirm the order Lush J. made in the Supreme Court of Victoria. (at p559)

GIBBS J. I would allow this appeal for the reasons given by my brother Stephen and my brother Mason, with which I am in general agreement and to which I have nothing to add. (at p559)

STEPHEN J. Early on the morning of 25th May 1968 most of the length of what had been a sound brick wall, forming the external western wall of the respondents' garage building in Anstruther Street, Echuca, collapsed, bringing down with it much of the respondents' garage. (at p560)

2. In the preceding week two workmen engaged in the first stages of construction of a supermarket on the block next door had, it seems, excavated a trench three feet eight inches deep hard up against the western wall of the garage along its full length from front to rear of the block. At that depth the trench was more than two feet below the bottom of the footings of the garage wall. From this trench the workmen had, along much of its length, excavated bays or pockets under the footings of the garage wall, so that immediately before the collapse not only was the wall standing on the edge of a trench but there also existed these pockets extending under the footings some twelve to eighteen inches into the plaintiffs' land and each three foot nine inches long, separated the one from the next only by undisturbed sections of soil of similar length. Thus much of the wall was supported by only one half of its originally underlying soil. (at p560)

3. The sides of the open trench were without any boxing or other support, the garage wall was not shored up and the pockets, intended ultimately to be filled with underpinning material, were still unsupported voids when rain fell and the wall collapsed, much of it falling into the trench. (at p560)

4. The respondents were obliged to abandon the garage, which was later demolished. They sued the appellant, who was the owner of the adjoining land and for whom the supermarket was to be erected; they also sued both the appellant's architect and his builder, whose workmen had made the excavations. The builder died soon afterwards and as against him the action was regarded as having abated, no relief being sought subsequently against his estate. (at p560)

5. What was done by the workmen in excavating the trench and pockets was, on any view, highly dangerous and entirely contrary to proper building practice. Apart from anything else the underpinning, for which the pockets were designed, was needed to prevent damage to the garage wall by the digging of the trench; yet, in disregard of all common sense, the digging out of the entire length of trench preceded any underpinning. The position was then aggravated by digging out a large number of pockets and leaving them and the unsupported trench in that condition when rain came and transformed the hard clay soil into a very poor load-bearing material. (at p560)

6. At the trial before Lush J., the present respondents succeeded against the appellant owner although failing to establish liability on the part of the architects. The appellant's appeal to the Victorian Full Court was unsuccessful and he now appeals to this Court. It is only with his liability to the respondents that this appeal is concerned. (at p561)

7. There are three grounds of suggested liability on the part of the appellant; civil liability arising from breach of reg. 1604 of the Uniform Building Regulations, liability in trespass and liability in negligence. In these last two instances the appellant is sought to be made liable for the acts of the two workmen employed by the builder, and independent contractor; in the case of breach of reg. 1604 it is the failure to shore up, underpin or otherwise protect the adjoining garage that is said to make the appellant liable. The learned trial judge found for the respondent on the issue of breach of the regulation and also on the cause of action in trespass while the Victorian Full Court, in dismissing the present appellant's appeal, confined itself to the first of these two grounds, expressly refraining from any concluded view either on liability in trespass or in negligence, as to which latter cause of action the learned trial judge had himself expressed no conclusion. (at p561)

8. Before turning to the law I should say something more about the facts as found by the learned trial judge. His Honour held that neither the appellant nor a Mr. Baillie, the architects' representative, knew that the builder's men were digging the trench and pockets. Baillie had, in the appellant's presence, instructed the builder to do no more than dig one small exploratory hole under the footings of the garage wall so as to find out the precise positions and dimensions of the footings. It seems that it was Baillie's intention, armed with that information, then to have a consulting engineer prepare the necessary plans for underpinning of the wall. Instead, of course, the builder's workmen did what was "blatantly and obviously dangerous" and his Honour found that "the primary responsibility for the disaster rested with the builder". There were three factors the combined operation of which resulted in the collapse of the wall; these were the digging of a continuous trench of the depth and length here in question, the grossly unskilful digging of the pockets and the subsequent falling of rain. His Honour found that the respondent did not consent to any excavation under the footings of his building; all that he knew was that an operation of unspecified character described as underpinning might be undertaken and that he would be consulted before it was. (at p561)

9. From these primary facts some conclusions follow; if any duty of care was owed to the respondents which included within its scope the quality of the conduct of the builder's workmen there was a breach of that duty; the workmen also were trespassing upon the respondents' land in excavating pockets under the footings of the wall; the collapse of the wall was caused by these acts, together with the rain which fell. If the appellant is responsible either personally for a breach of reg. 1604 or for the consequences of the workmen's tortious acts he will be liable to the respondents in damages. (at p562)

10. I may add that an examination of the terms of the building contract between the appellant and the contractor makes it clear that it neither directed nor authorized the builder to dig the trench, let alone to excavate the pockets under the respondents' footings, without first notifying the architect and receiving relevant instructions from him which, of course, the builder failed to do. Mason J., in his reasons for judgment, has analysed the terms of the contract and their effect and I would, with respect, adopt as my own the reasons he states for arriving at the above conclusion. (at p562)

11. This conclusion is in itself enough to dispose of the respondents' cause of action in trespass; had the builder's workmen been the employees of the appellant, instead of being employed by his independent contractor, the appellant would not in these circumstances have been liable for their trespass upon the respondents' land, for he had neither ordered the trespass nor any act comprising it nor any act leading by a physical necessity to the trespass (Sharrod v. London & North Western Railway Co., per Parke B. [1849] EngR 1191; (1849) 4 Exch 580, at pp 585-586 [1849] EngR 1191; (154 ER 1345, at p 1348) , Esso Petroleum Co. Ltd. v. Southport Corporation, per Lord Tucker (1956) AC 218, at p 244 ); the workmen, when they trespassed were not acting as the appellant's instrument (Darling Island Stevedoring and Lighterage Co. Ltd. v. Long, per Kitto J. [1957] HCA 26; (1957) 97 CLR 36, at p 65 ). The present case, in which the workmen were not the employees of the appellant, is a fortiori. (at p562)

12. As to liability in negligence there is, as I have said, no doubt but that the workmen were grossly careless and unskilful in what they did; but how is this to be visited upon the appellant, who had, without negligence, engaged the builder to carry out the contract work for him and who by that contract had neither authorized nor directed the dangerous mode of digging the trench and pockets which caused the collapse of the wall? Two difficulties appear to lie in the respondents' path. The first flows from the fact that the workmen were not the appellant's servants but were servants of his independent contractor; this will suffice to exclude the appellant from liability unless the case can be shown to fall within one or other of the several exceptions to the general rule that an employer is under no liability for the negligence of his independent contractor. (at p563)

13. In the circumstances of this case the only relevant exception calling for consideration is that which is said to arise in the case of "extra-hazardous" operations (Honeywill & Stein Ltd. v. Larkin Bros. (London's Commercial Photographers) Ltd. (1934) 1 KB 191 and Matania v. National Provincial Bank (1936) 2 All ER 633 ). Apart from these two cases there are much dicta in the English courts recognizing the existence of this exception, the most recent being that in the Court of Appeal in Salsbury v. Woodland (1970) 1 QB 324 . This exception, well established in the Canadian and American courts, has never been applied in the House of Lords and ever since 1871 there is to be found in speeches of a number of their Lordships a reluctance to accept its existence (Daniel v. Metropolitan Railway Co. (1871) LR 5 HL 45, at pp 50, 60-61 , Hughes v. Percival (1883) 8 App Cas 443, at p 447 , Rainham Chemical Works Ltd. v. Belvedere Fish Guano Co. Ltd. (1921) 2 AC 465 ). In the last Atkin L.J., in the Court of Appeal (1920) 2 KB 487, at p 504 , had said that a person who, through a contractor, did work of its nature likely to cause danger to others, had a duty to take all reasonable precautions and did not escape that duty by employing a contractor who failed to take such precautions. In the House of Lords the matter was decided by the application of the principle in Rylands v. Fletcher and Lord Buckmaster (1921) 2 AC, at pp 476-477 (with whom Lord Wrenbury agreed) and Lord Parmoor (1921) 2 AC, at pp 490-491 expressly rejected the proposition of Atkin L.J. (at p563)

14. Their Lordships' rejection, in Read v. J. Lyons & Co. Ltd. [1946] UKHL 2; (1947) AC 156 , of the concept of a specific category of operations the inherent danger of which resulted in the imposition of absolute liability, itself casts doubt upon the use of such a category for the purpose of qualifying the non-liability of an employer for the negligence of his independent contractor. (at p563)

15. In Australia the existence of the doctrine was rejected by the Full Court of the New South Wales Supreme Court in Torette House Pty. Ltd. v. Berkman (1939) 39 SR (NSW), 156 . Jordan C.J., after careful consideration of the authorities, concluded that there was no such principle as the respondents must here contend for. His Honour, speaking of the employer of an independent contractor, said that the general rule in such a case was that

"although he is liable for all the consequences of the results
contracted for he is not as a general rule responsible for
damage occasioned by negligence on the part of the contractor
in applying the methods selected by the contractor for
achieving those results, these methods and their application
being matters over which the employer has no control, and
not being methods which must necessarily be used and from
which damage must necessarily result" (1939) 39 SR (NSW), at p 165 .

That general rule was, his Honour said, not subject to any exception because the work contracted for was "extra-hazardous" in the sense of being specially likely to cause danger, or likely to cause specially serious danger, to others. (at p564)

16. An employer will, whether or not the activity is regarded as extra-hazardous, be liable in negligence for the consequences to third parties both of acts which he specifically authorizes or directs and of methods not so authorized but which are necessarily involved in performing those acts. For the consequences of other negligent conduct of the contractor the employer will not be liable; he did not, in the language of Jordan C.J., have control over that conduct. In my view the significant fact is that it formed no part of that which the employer, by the contract, required the contractor to perform. In the terminology of the doctrine of extra-hazardous activity that conduct is likewise excluded from the area of the employer's liability by being described as collateral negligence. As Pollock C.B. said, in Hole v. Sittingbourne & Sheerness Railway Co. (1861) 6 H & N 488, at pp 498-499 (158 ER 201, at p 204) :

"Where the act complained of is purely collateral, and
arises incidentally in the course of the performance of the
work, the employer is not liable, because he never authorized
that act - the remedy is against the person who did it." (at p564)

17. To regard the matter as depending upon authorization, express or necessarily implied, as did Jordan C.J., avoids the search for the elusive criteria which must serve to identify both the suggested category of "extra-hazardous activities" and those acts styled "collateral negligence". It seems to me to be a preferable approach. It has, of course, no application in the quite different instances where an employer will be liable for the acts of his independent contractor because the employer is himself under some direct duty, whether imposed by statute, either expressly or by implication, or because some other obligation attaches, as, for instance, where his land is burdened by an easement of support. In such cases if the employer chooses to have performance of his duty attended to by the contractor he remains liable for any non-performance: see per Wright J. in Blake v. Woolf (1898) 2 QBD 426 . The difference between the view taken by Jordan C.J. and that involving a category of extra-hazardous activities may produce little difference in outcome so long as each is confined to the same quite narrow field to which they are properly applicable. (at p565)

18. When the Torette House Case came on appeal to this Court [1940] HCA 1; (1940) 62 CLR 637 , the Court expressly refrained from the expression of any view concerning the rejection by the Full Court of the doctrine of extra-hazardous activities. It emerges clearly enough from the judgments that even if there be any such doctrine it has no application if the work undertaken is merely such as will create danger to others if done negligently. The doctrine, if any there be, is confined to work which, using the language of the doctrine, by its "very nature, must be regarded, as a matter of law, as involving special danger of damage to others" (per Latham C.J. (1940) 62 CLR, at p 648 ), work the nature of which involves a "special or peculiar hazard" (per Starke J. (1940) 62 CLR, at p 651 ). Dixon J. (1940) 62 CLR, at p 656 , by his reliance upon Blake v. Woolf (1898) 2 QBD 426 , makes it clear that he took a similar view. It is to be observed that the result of these views, language apart, conforms well enough to the principles enunciated by Jordan C.J., as does the judgment of Dixon J., who relied extensively upon the decision of Wright J. in Blake v. Woolf. (at p565)

19. In the present case I conclude that the negligent acts of the contractor's workmen were not authorized by the employer, the appellant, nor necessary to be employed in achieving the contractual aim; they were merely methods, and grossly unskilled and hazardous ones, selected by them for achieving the results contracted for. For these acts, as Jordan C.J. points out, the employer will not be liable. If one were to cast the matter in terms of an extra-hazardous activity, the erection upon a block of level, vacant land of a single-storeyed structure, the building contract itself calling for no special and dangerous methods of construction but on the contrary containing suitable safeguards, is not such an activity. Despite statements such as that of Slesser L.J. in the Honeywill Case (1934) 1 KB, at p 199 , that it is enough that the work involves danger ... unless proper care is taken" or that of Cockburn C.J. in Bower v. Peate (1876) 1 QBD 321, at pp 326-327 that the principle applies to work productive of injurious consequences "unless preventive measures are adopted", the suggested doctrine should not in any event extend beyond the quite different case of work authorized by the employer which, however performed, inherently involves peculiar danger to others. (at p566)

20. It follows that the nature of the work upon which the workmen were engaged will not provide a means of overcoming the first difficulty which the respondents face, namely that it was the negligence of the servants of an independent contractor which caused the collapse of the garage wall. This difficulty I regard as fatal to success of the respondents' cause of action in negligence. (at p566)

21. It is accordingly unnecessary to do more than point to a second difficulty in the respondents' path; it springs from the absence of any easement of support in favour of the respondents' building over the appellant's land. Easements generally may, in Victoria, be acquired, even in the case of Torrens system land, by resort to the doctrine of the lost modern grant (Nelson v. Hughes [1947] VicLawRp 30; (1947) VLR 227 ). In Dalton v. Angus & Co. (1881) 6 App Cas 740 it was held that until, by the passing of time, an easement of support is acquired, the owner of the potentially servient land may "with perfect legality dig that soil away and allow his neighbour's house, if supported by it, to fall in ruins to the ground", per Lord Penzance (1881) 6 App Cas, at p 804 . This right is, as it were, a corollary of the prospective subjection of his land to an easement of support should he fail, within the period of twenty years, to deprive the adjoining building of the support it in fact is enjoying. (at p566)

22. The matter was considered recently in the Court of Appeal in Ray v. Fairway Motors (Barnstaple) Ltd. (1968) 20 P & CR 261 and, while it seems that at least two of their Lordships may have felt some doubts upon the matter - Willmer L.J. (1968) 20 P & CR at p 269 and Fenton Atkinson L.J. (1968) 20 P & CR, at p 275 - Dalton v. Angus (1881) 6 App Cas 740 still represents the present state of the law; it was applied by Higinbotham C.J. in Johns v. Delaney (1890) 16 VLR 729 , the only relevant Australian authority. Dalton v. Angus (1881) 6 App Cas 740 has very recently been distinguished by the New Zealand Court of Appeal in Bognuda v. Upton & Shearer Ltd. (1972) NZLR 741 upon the ground that, since in that jurisdiction, as in the United States, an easement of support may no longer be acquired by prescription, no bar exists to the application to an excavating land owner of a duty of reasonable care for the support of buildings upon adjoining land, it being appropriate to apply the principle in Donoghue v. Stevenson [1932] UKHL 100; (1932) AC 562 despite the existence of no precedent authority - Dorset Yacht Co. Ltd. v. Home Office [1970] UKHL 2; (1970) AC 1004 . (at p567)

23. Since easements may be acquired in Victoria by prescription the New Zealand position is not comparable. Nevertheless I regard it as at least arguable that, as the law of negligence now stands, the threatened burdening of land with an easement of support in favour of a building next door does not entail the consequence that the owner of the land thus threatened may excavate up to his own boundary regardless of the effect upon his neighbour's building. In view of my earlier conclusion adverse to the existence of any cause of action in negligence it is unnecessary to determine this question, which would, in any event, apply only to the digging of the trench and not to the workmen's acts of trespass in excavating pockets under the respondents' wall; I merely observe that the rule in Dalton v. Angus (1881) 6 App Cas 740 is clearly ill-adapted to conditions in modern cities, the more so in jurisdictions where the absence of any statutory right of a landowner or his builder to require an adjoining building owner to permit his building to be underpinned may tend to invite recourse to self-help should negotiations for underpinning agreements break down. (at p567)

24. There remains the respondents' cause of action founded upon breach of reg. 1604 of the Uniform Building Regulations (Vict.). The relevant part of the regulation is par. (a)(i) which reads:

"(a)(i) Where excavation or demolition is to be made in
proximity to an existing building, the walls of such
building shall be shored and/or underpinned and/or
protected as may be necessary to ensure stability".

With it must be read reg. 301, which creates offences against the regulations and imposes penalties; it reads:

"301. Penalties. - Any person doing or causing to be done
an act forbidden to be done or failing to do any act directed
to be done by these Regulations and any person who, in the
execution of any work for which a permit is required, fails
to comply with the standards in these Regulations prescribed
for work or materials shall be guilty of an offence against
these Regulations, and every person guilty of an offence
against these Regulations shall for the first offence be liable to
a penalty of not more than $200, and for every subsequent
offence to a penalty of not less than $50 and not more than
$200 and shall be liable to a further daily penalty of not
more than $50 for any offence against the Regulations which
is continued or repeated after a conviction or order by any
court in relation to the offence."

The requirement in reg. 1604(a)(i) is positive, not negative; it does not, in terms, forbid the doing of any act but instead requires certain action to be taken before other acts are done, before excavation or demolition in proximity to any existing building is undertaken. There is, I think, a clear distinction to be drawn between the doing of an act which is forbidden, either simply, as in the command "You shall not do X" or subject to a relieving condition, as in the command "You shall not do X unless you first do Y", and the doing of an act not itself forbidden but which provides the circumstance giving rise to some anterior obligation, as in the command "If you are going to do X, do Y first". No doubt the second and third of these commands should, if observed, lead to the same result in terms of conduct but the important distinction between them is that only in the second command is there a forbidding of the doing of X; the third command is expressed in positive, not negative, terms and forbids nothing; instead it directs the doing of something and points out the circumstance which alone gives rise to the need to perform the command. (at p568)

25. Regulation 301 recognizes this distinction when it deals, as distinct kinds of conduct, with the doing of a forbidden act and the failure to do a directed act. With due respect to the views to the contrary expressed in the Full Court, I can only regard reg. 1604 as concerned with the latter. Regulation 301, in distinguishing between the two, renders liable to penalty both a person who does and one who causes to be done a forbidden act, but, in the case of failure to do a directed act, visits penalty only on the person who so fails and not on a person who may cause the failure. (at p568)

26. Taking the view which I do of the construction of reg. 1604 it follows that the question for me is not, as it was for the Full Court, whether the appellant caused the excavation to be made, an enquiry which their Honours answered in the affirmative, although with "considerable hesitation". It is, rather, whether the failure to shore, underpin or protect as directed in reg. 1604 was any failure on the appellant's part; that is to say, whether the direction is addressed to him, as the person for whom the building operations were undertaken, or is directed only to the builder. (at p568)

27. There is, I think, much in the regulation which suggests the latter. In reg. 1604 the duty is to shore, underpin or protect "as may be necessary to ensure stability"; the words of this regulation suggest that it is addressing itself to the person in fact undertaking the building operation and that it is he who must, as the works progress, judge what is necessary for stability. No definite action is prescribed, instead what is called for is all such action as will attain the particular objective which is specified, "stability". (at p569)

28. The Uniform Building Regulations are the product of the labours of the Building Regulations Committee, a body constituted under div. 2 of Pt XLIV of the Local Government Act 1958 (Vict.) and composed of experts in the field of building construction: s. 920 (1) . In these circumstances it is to be anticipated that the regulations should, by their terms, reveal an assumption that they will operate within the general framework of conditions prevailing within the Victorian building industry. Work preliminary to excavation or demolition will, no doubt, usually be done by the building contractor after he obtains possession of the site and the proprietor will thereafter normally have no opportunity of entering upon the site and doing appropriate work himself or of directing the builder from time to time as to precisely how work is to be done. The reference in the regulation to a situation in which "excavation or demolition is to be made" and to the need in such a situation for the taking of such precautions "as may be necessary to ensure stability" points clearly, I think, to the conclusion that it is the building contractor who is referred to as he who is about to make an excavation and who is to ensure stability. (at p569)

29. Since in my view reg. 1604 is not addressed to the appellant and imposed no duty upon him he cannot be held liable for any failure to comply with the requirements of the regulation; the regulation cannot be used to found any distinct cause of action against him. (at p569)

30. Before leaving this regulation I should add that in my view it does not itself confer any authority upon an owner or builder to enter, without consent, upon adjoining premises for the purposes of underpinning or the like. It certainly does not expressly confer such a right, as did the New South Wales Ordinance considered in Anderson v. Mackellar County Council (1968) 69 SR (NSW) 444 , nor am I able to regard it as by implication conferring such a right. (at p569)

31. For these reasons I would allow the appeal. (at p569)

MASON J. The respondents recovered $20,513.55 damages in the Supreme Court of Victoria in an action against the appellant in respect of loss which they sustained by reason of the wall of a building erected on land which they owned at Echuca collapsing when it was undermined by excavations made by a builder engaged by the appellant. This appeal is brought from the decision of the Full Court of the Supreme Court upholding the judgment for the respondents. (at p569)

2. The circumstances in which the mishap occurred may be briefly stated. The appellant, whose land lay to the west of the respondents' and adjoined their land, wished to erect a supermarket on his land. With that end in view he engaged one Baillie as an architect to prepare plans for the erection of the supermarket and to supervise the erection of the building. The appellant then entered into a building contract with one Miller by which the latter undertook to erect the supermarket in accordance with the plans and specifications prepared by Baillie. (at p570)

3. The plans and specifications called for the construction along the eastern boundary of the appellant's land of the eastern wall of the supermarket with appropriate foundations and footings. The construction of this wall was complicated by the existence along that boundary of the western wall of a building erected on the respondents' land. This building was immediately adjacent to the boundary and was erected wholly on the respondents' land except in so far as the edges of the footings of the western wall projected or may have projected over the boundary. The plans and specifications required the construction of a trench on the appellant's land parallel and adjacent to the boundary. (at p570)

4. The trench was designed to suit the excavation of a footing twenty-four inches wide and fifteen inches deep, widened in parts to accommodate columns. As the depth to which the trench was to be excavated was below the bottom of the footings of the respondents' wall it was apparent that there may be a need to stabilize the wall, e.g. by underpinning. The building contract contained certain provisions relating to underpinning which I shall mention later. (at p570)

5. Baillie instructed the builder to dig a test hole passing under the footings of the respondents' building so as to ascertain the depth and width and perhaps the condition of the footings under the respondents' wall. The builder did not comply with this instruction and without further notice to Baillie or to the appellant proceeded to commence work by excavating a trench to a depth of three feet eight inches along the eastern boundary of the appellant's land parallel with and adjacent to the wall of the respondents' building. The bottom of the trench was two feet three inches below the bottom of the footings of the respondents' building. Before digging the trench the builder trimmed projecting concrete on the footings of the respondents' building with a jackhammer but the evidence does not disclose the extent to which the footings were disturbed by this operation. (at p570)

6. The builder having begun the work on 20th May 1968 had excavated the trench by 22nd May. Later on that day or early on 21st May the builder, without any authority from the architect or the appellant, began to excavate pockets underneath the respondents' wall, as a preliminary to underpinning it. The pockets were three feet nine inches wide and they were dug at intervals of three feet nine inches over a distance of forty-four feet from the front of the property and over a distance of thirty feet from the rear of the property, that is, along more than half the total distance of the wall which was 132 feet. The pockets extended twelve to eighteen inches under the wall and into the respondents' property. They were of approximately the same depth as the trench. The excavation of the pockets was completed on Friday. (at p571)

7. According to expert evidence, which in this respect was not disputed, the digging of these pockets did not conform to sound or normal building practice. Normal practice requires that the pockets are spaced well apart, that they are excavated in association with a narrow pit wide enough to accommodate a man and allow him to excavate underneath the footing, and that if the ground is not solid the wall is shored to prevent tilting. The builder therefore failed to conform with accepted practice in several respects, not the least of which was the excavation of the trench before the underpinning had been undertaken. (at p571)

8. On the day following the digging of the pockets rain fell and at ten o'clock on Saturday night the wall collapsed. As it supported roof trusses which ran across the building the movement of the trusses caused considerable damage to other parts of the building. (at p571)

9. The primary judge expressed his findings of fact in these terms:

"I find that the wall collapsed as a result of the combined
operations of three factors. One was that the trench had been
dug along the whole of its length to a level below the bottom
of the footings of the plaintiffs' wall. The second was that the
pockets had been dug under the wall in a fashion which was
grossly unskilled, and the third was, of course, the rain."

Although there was an expression of opinion by Dr. Allen, an expert called by the respondents, that the wall would probably have collapsed even if the pockets had not been taken out, his Honour made no finding on this point. (at p571)

10. On his findings the primary judge held that the appellant was liable to the respondents on a statutory cause of action based on reg. 1604(a) (i) of the Uniform Building Regulations made under Pt XLIX of the Local Government Act 1958 (Vict.) which requires that where excavation is to be made in proximity to an existing building the walls of that building shall be "shored and/or underpinned and/or protected" to ensure stability. His Honour also held that the appellant was liable to the respondents in trespass arising out of the builder's interference with the soil under the wall. The Full Court placed its decision solely on the existence of the statutory cause of action based on the regulation. (at p572)

11. It should be mentioned that in the action the respondents sued Baillie and the builder Miller as well as the appellant. The builder died while the action was pending and as against him it abated. The action proceeded against the two remaining defendants, the primary judge finding in favour of Baillie. No appeal has been taken from this finding. (at p572)

12. Before considering the various bases on which the respondents endeavoured to support the judgment in their favour it is important to examine the provisions of the contract in so far as they relate to the work which was actually carried out by the builder. The responsibility of the appellant for what was done by the builder, whether in trespass, negligence or under reg. 1604, depends very largely on what the contract has to say. In this connexion the contract, apart from the provision in the drawings for the construction of the foundations and the wall along the appellant's eastern boundary which necessarily involved the excavation of the trench, contained two relevant stipulations. (at p572)

13. The first stipulation is cl. 57 of the Schedule of Conditions which appears under the heading "Protection". It provides:

"The Builder at his own discretion shall at all times do
everything prudent or necessary to ensure the safety and freedom
from injury, damage or interference of all of the adjacent
public or private lands, properties ... and all other
adjacent real or personal property whatsoever ... and ...
shall carry out and provide such shoring or other terms of
support ... and other protective and precautionary measures
as may be necessary for any of the purposes as aforesaid.

In the event of underpinning of adjoining property becoming
necessary for any of the aforesaid reasons the Builder shall
notify the Architect and receive instructions before proceeding
with any work affected."(at p572)

14. This clause makes it clear that the parties thought that shoring up or underpinning might be a means of executing the contract work, but it falls short of establishing that the relevant acts of the builder were the subject of any authority and direction on the part of the appellant. Although the digging of the trench formed part of the contract work, the contract did not authorize and direct the builder to dig the trench before underpinning the wall. Nor did it specify the digging of the pockets as a preliminary to underpinning the wall. The last sentence in cl. 57 in the passage to which I have referred required the builder to notify the architect and receive instructions in the event that underpinning became necessary. Indeed, the receipt of instructions is an essential preliminary to his "proceeding with any work affected". What is meant by the expression "any work affected" is not entirely clear, but I understand it to include not merely the underpinning and any operations preliminary to underpinning such as digging of a pocket, but also the work which renders underpinning necessary. Accordingly, the architect's instructions were an essential preliminary to the digging of the trench, that being the excavation undertaken in proximity to the wall which made necessary the underpinning of that wall. For these reasons it is my view that cl. 57 did not constitute an authority or direction from the building owner to the builder to dig the trench or the pockets without the prior authority of the architect. (at p573)

15. The second stipulation, cl. E4.01, in the Specifications is in the same case. It provides:

"Allow in tender the Prime Cost Sum of Two Thousand
Seven Hundred Dollars (see 'R' Prime Cost Schedule)
($2,700.00) for underpinning of walls to adjoining property
on east boundary. Work to be carried out only on the authorisation,
instruction and supervision of Architects or
Engineers."

This provision requires that underpinning and the work involved in underpinning, that is the digging of pockets, shall not be carried out except on the authority of the architects or engineers. In this instance the stipulation has no application to the digging of the trench along the eastern boundary, but in accordance with what I have already said cl. 57 stipulated the architect's instructions as a necessary preliminary to the undertaking of that work. (at p573)

16. It follows, then, that the contract did not authorize and direct the builder to do what he in fact did. By proceeding as he did he failed to comply with the requirements in cl. 57 and cl. E4.01 as they applied to the digging of the pockets. In this circumstance the trespass by the builder cannot be attributed to the appellant. For the purposes of trespass the act of an independent contractor does not become the direct act of the defendant unless he orders to be done the act which constitutes the trespass, some act which comprises that act or some act which leads by physical necessity to the trespass: Sharrod v. London and North Western Railway Co. [1849] EngR 1191; (1849) 4 Exch 580, at p 585 [1849] EngR 1191; (154 ER 1345, at pp 1347-1348) ; Darling Island Stevedoring and Lighterage Co. Ltd. v. Long [1957] HCA 26; (1957) 97 CLR 36, at pp 64-65 . (at p574)

17. Unabashed by the lack of success of a similar argument in the Supreme Court the respondents submitted that the judgment could be supported by reference to a rule of strict liability for dangerous or extra hazardous acts by virtue of which a defendant is said to be responsible for the acts of his independent contractor. The principles governing the liability of a person for damage caused to a third party in the execution of dangerous operations undertaken by his contractor form a branch of the law notorious for its difficulty. Its complexity is not diminished by the wealth of discordant statements which have been made in the decided cases. Although the general rule is that a person is not liable for the negligence of his independent contractor, it is accepted that a person who owes a duty to a third party cannot avoid responsibility for discharging that duty by delegating performance of it to an independent contractor. The question then is: what is the extent of the duty owed by one landowner to a neighbouring landowner in connexion with an excavation to be made by a contractor employed by the former on his land which will, if not made with due care, endanger the building of his neighbour? (at p574)

18. Various expressions of the duty are to be found in the books. As might be expected, the appellant asserts that in the case of extra-hazardous operations, that is operations which involve special danger to others, i.e. fire and explosion, the ultimate employer is responsible for the acts of his independent contractor because he is under a duty to see that the operations are undertaken without negligence. This was the basis assigned by the Court of Appeal for its decision in Honeywill & Stein Ltd. v. Larkin Bros. (London's Commercial Photographers) Ltd. (1934) 1 KB 191, at p 197 , a principle later affirmed and applied by that Court in Matania v. National Provincial Bank Ltd. (1936) 2 All ER 633 ; see also Salsbury v. Woodland (1970) 1 QB 324 . The distinction between hazardous and extra-hazardous acts, between dangers and special dangers, a distinction which lies at the heart of this doctrine, has been trenchantly criticized (Torette House Pty. Ltd. v. Berkman (1939) 39 SR (NSW) 156, at pp 167-170 ) and there is powerful authority for the proposition that the doctrine, notwithstanding the existence of a similar doctrine in the United States (see Prosser on Torts, 3d ed. (1964), p. 484; Harper and James, Law of Torts (1956), pp. 788 et seq., pp. 801 et seq.), forms no part of the common law (Read v. J. Lyons & Co. Ltd. [1946] UKHL 2; [1946] UKHL 2; (1947) AC 156 ; Rainham Chemical Works Ltd. v. Belvedere Fish Guano Co. Ltd. (1921) 2 AC 465, at pp 477, 490-491 ). Indeed, the House of Lords in Read v. J. Lyons & Co. Ltd. by accepting the principal that in the case of dangerous things and operations there is a special responsibility to take care proportioned to the danger, discarded the notion of strict liability and preserved the concept of fault. (at p575)

19. In this case there is no occasion to decide whether the doctrine of absolute duty or strict liability for extra-hazardous acts is part of the common law in Australia. If it has an application here, it would be wrong to classify the demolition and erection of a building (necessarily involving an excavation) in immediate proximity to the wall of an adjoining building as an extra-hazardous act. The operation is one which certainly involves a risk of injury to the neighbour if it is not executed with due care. But this is not in itself enough to justify its description as extra-hazardous. To my mind this expression signifies that, notwithstanding the taking of proper precautions, there is some special element of danger arising from the operation. (at p575)

20. Although here the operation was one which involved a risk of injury to the respondents if it was not executed with due care, in essence it was an everyday occurrence entailing safeguards which are well known and which, if implemented by a skilled and experienced contractor, eliminate the danger. There is in these circumstances no reason why the law should classify the operation as extra-hazardous and thereby impose an absolute duty of care on the landowner by virtue of which he becomes responsible for collateral negligence of the contractor in the form of a negligent act or omission inconsistent with his instructions and not readily to be foreseen. Although the temptation to apply a rule of strict liability in favour of plaintiffs who have sustained a severe loss and who are otherwise without remedy is not always easy to resist, it is one which should be repelled in these circumstances when its consequence is to cast a liability on a party in whom no fault resides and who in the nature of things is compelled to rely on the expertise of contractors in a matter which lies outside the realm of his own capacity and experience. (at p575)

21. The respondents pointed to cases in which a landowner has been held to be subject to a higher duty than that imposed by the ordinary duty of care. However, they are cases of escape of fire (Black v. Christchurch Finance Co. Ltd. (1894) AC 48 ; McInnes v. Wardle [1931] HCA 40; (1931) 45 CLR 548 or cases in which the defendant infringed the plaintiff's rights by interfering with his right of support (Bower v. Peate (1876) 1 QBD 321 ; Dalton v. Angus & Co. (1881) 6 App Cas 740 ) or by interfering with a party wall (Hughes v. Percival (1883) 8 App Cas 443 ). In each case it may be seen that the defendant was in breach of a duty which he owed to the plaintiff. (at p576)

22. It is true that in Bower v. Peate (1876) 1 QBD, at p 326 , Cockburn C.J. went further and said that a person who orders the execution of a work "from which, in the natural course of things, injurious consequences to his neighbour must be expected to arise, unless means are adopted by which such consequences may be prevented" is responsible for the damage caused. For the reasons which I have already given this statement is too wide. (at p576)

23. The principle that in the case of dangerous operations there is a special responsibility to take care does not exclude the liability of a person who engages an independent contractor to undertake an operation which is inherently dangerous and which injures a third party. But to make the principal liable it must appear that he himself was guilty of some negligent act or omission or that he authorized some negligent act or omission by the contractor in executing the operations which the latter was employed to carry out. Thus it may appear that the principal is liable because he has failed to take care to engage a competent contractor or because, having knowledge that the contractor proposed to execute the work in an unsafe manner, he did nothing to eliminate the danger. (at p576)

24. When the facts of this case are examined they do not reveal any failure on the part of the appellant to take reasonable care to avoid injury to the respondents in consequence of the excavation. It is not contended that the appellant was negligent in the selection of his architect or builder. He was not aware that the trench was to be, or that it was, dug without steps being taken to underpin the respondents' wall; nor was he aware that pits were to be, or that they were, excavated without steps being taken to secure the wall. By his contract with the builder he bound the builder not to proceed with the excavation of the trench or with underpinning otherwise than in accordance with the architect's instructions. No doubt it was contemplated by the appellant and the builder that underpinning would be undertaken as a possible or probable precaution but the contract stipulated that it was not to proceed without the architect's instructions. In all this I am unable to perceive any want of care on the part of the appellant. (at p577)

25. As there has been no breach of duty on the part of the appellant, the general rule that a person is not responsible for the negligence of an independent contractor applies. All this accords with the principle of vicarious liability accepted by the majority of this Court in Darling Island Stevedoring and Lighterage Co. Ltd. v. Long [1957] HCA 26; (1957) 97 CLR 36 . Accordingly, the claim in negligence fails. (at p577)

26. Regulation 1604, which appears in cl. 16 of the Uniform Building Regulations entitled "Precautions During Construction and Pulling Down of Buildings", reads as follows:

"Protection of Adjacent Property -
(a) (i) Where excavation or demolition is to be made in
proximity to an existing building, the walls of such building
shall be shored and/or underpinned and/or protected as may
be necessary to ensure stability;
..."

The primary judge considered that this provision imposed a duty not only on the builder but also on the appellant as the building owner, that it conferred a civil right of action on the respondents as owners of adjacent property for breach of the duty and that the evidence disclosed the existence of a breach of the provisions of the regulation. The conclusion reached by the primary judge, and for that matter the conclusion reached by the Full Court, was based partly on the provisions of reg. 301. This regulation, which appears in Ch. 3 headed "Penalties and Enforcement of Regulations", provides:

"Penalties - Any person doing or causing to be done an
act forbidden to be done or failing to do any act directed to
be done by these Regulations and any person who, in the
execution of any work for which a permit is required, fails
to comply with the standards in these Regulations prescribed
for work or materials shall be guilty of an offence against
these Regulations...."

The maximum penalty imposed for the first offence is $200. Penalties are imposed for subsequent offences and for continuing offences. Both at first instance and on appeal the Supreme Court held that the appellant was a person who caused the making of the excavation in breach of reg. 1604(a) (i). (at p577)

27. The case for the appellant is that (1) reg. 1604 imposes no duty on the building owner and that it is directed exclusively to the builder or person who carries out the work therein referred to, (2) the regulation confers no civil right of action for breach of its provisions, and (3) the appellant did not authorize the making of the excavation. (at p578)

28. Regulation 1604(a) (i) directs that the action therein mentioned shall be taken with respect to walls of a building without naming the person or persons by whom that action is to be taken. There is therefore the prescription of a duty without a description of the person or persons on whom the duty is imposed. Nevertheless it is to be gathered from the circumstance that the duty to shore up, underpin or take other action arises where an excavation or demolition is to be made, that the duty is imposed on the person or persons about to carry out the excavation or demolition. Nothing in reg. 301 detracts from this conclusion, although that provision makes it clear that a person causing a forbidden act to be done, as well as the person doing that act, will be guilty of an offence. It is of particular significance that reg. 301 contains no like provision making liable a person who causes to be omitted an act directed to be done by the regulations. An endeavour was made to surmount this deficiency by arguing that reg. 1604(a) (i) in effect prohibited the carrying out of an excavation or demolition unless the precautions specified were undertaken. Though this may have been the intended effect of the provision it is not so expressed; instead it is expressed as a positive requirement that the precautions indicated shall be taken where excavation or demolition is to be made in proximity to an existing building. (at p578)

29. I am unable to discern in the language of reg. 1604 or in that regulation as read in the light of reg. 301 a sufficient indication that the relevant duty is imposed on the building owner. The regulations are to be contrasted with Ordinance 71 made under the Local Government Act, 1919 (N.S.W.), where the like duty was expressly imposed on the building owner: see Anderson v. Mackellar County Council (1968) 69 SR (NSW) 444 . (at p578)

30. Although it was suggested that the regulation imposed the duty in furtherance of the duty imposed on the building owner at common law, this remains a matter of conjecture. To my mind it cannot be demonstrated that the regulation was enacted in furtherance of the duty imposed by the general law on the building owner in addition to that imposed on the builder. (at p578)

31. Nor is there any warrant for supplying this omission by making an implication founded on the justice of the case. Even if in the majority of cases the building owner has knowledge of the circumstances upon which the existence of the duty is hinged he will have little or no opportunity or capacity to comply with the statutory direction. Once the building contract is entered into the progress of the work lies in the hands of the builder, subject to such directions as the architect may be entitled to give in accordance with the contract. And the means of compliance lie within the realms of skill and experience of the architect and the builder to which the building owner is in general a stranger. (at p579)

32. Regulation 1604 gives rise to a criminal offence. As such it should be construed strictly so as not to include the building owner. (at p579)

33. For these reasons I am unable to agree with the Supreme Court's conclusion that the appellant was liable for a breach of the regulation as a person who caused the act to be done within the meaning of reg. 301 and I would therefore allow the appeal. (at p579)

ORDER

Appeal allowed with costs.

Order of the Full Court of the Supreme Court of Victoria set aside, and in lieu thereof order that (1) the appeal to that Court be allowed with costs, and (2) the judgment of Lush J. be set aside and in lieu thereof it be ordered that there be judgment in the action with costs for the first-named defendant and for the third-named defendant.