Progress & Properties Ltd v Craft [1976] HCA 59; (1976) 135 CLR 651 (18 November 1976)

HIGH COURT OF AUSTRALIA

PROGRESS AND PROPERTIES LTD. v. CRAFT [1976] HCA 59; (1976) 135 CLR 651

Negligence - Scaffolding and Lifts (N.S.W.)

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

CATCHWORDS

Negligence - Action for damages for personal injury - Plea of illegality - Workman injured in accident involving use of goods lift - Use of lift for carriage of passengers prohibited by regulation - Workman allowed to ride in lift by another workman - Whether joint illegal activity of injured workman and lift operator affecting duty of care.

Scaffolding and Lifts (N.S.W.) - Statutory duties - Breach - Lift regulations - Prohibition of lowering lift at speed exceeding 600 feet per minute - Whether lift in free fall lowered - Whether right of action for injury sustained in consequence of breach of regulation - Whether person's presence in lift in breach of regulation - Regulations under Scaffolding and Lifts Act, 1912 (N.S.W.), reg. 139 (7), (25).

HEARING

Sydney, 1976, July 28, 29; November 18. 18:11:1976
APPEAL from the Supreme Court of New South Wales.

DECISION

November 18.
The following written judgments were delivered: -
BARWICK C.J. In this appeal I have had the advantage of reading the reasons provisions are there sufficiently detailed: I find no need to supplement my brother's statement of them. (at p654)

2. Three aspects of the matter I have found difficult of resolution. The first is the question of the validity of the submission that, because the respondent's injuries were due to the combination of the acts of the driver of the hoist and the respondent's presence on it in contravention of the prohibition of reg. 139(25), the respondent had no cause of action against the appellant as the employer of the driver of the hoist, founded on negligence in the driving of the hoist carrying the respondent: secondly, was the appellant in breach of reg. 139(7) relating to the speed at which a loaded hoist should be lowered, assuming in any case that a civil action could be founded on a breach of that regulation? thirdly, whether the Court of Appeal was justified in setting aside the jury's verdict on the ground that the award of damages was excessive. (at p654)

3. I have no difficulty in concluding that a plea of voluntary assumption of risk was properly withheld from the jury nor in concluding that the jury on the evidence could conclude that the driver of the hoist at the time his foot came off the brake pedal was acting within the scope of his employment, notwithstanding that, in breach of reg. 139(25), he had permitted the respondent to ride upon the hoist. I shall deal with what I consider to be the difficult question in the order in which I have listed them. (at p654)

4. First, as to the plea of illegality. Breach of reg. 139(25) carries a penalty: so there is no doubt that the chosen sanction for the observance of the regulation is punishment: that is to say, there is a criminal sanction for the breach of the regulation. It is none the less so because the punishment is pecuniary. In that connexion, it may be observed that the breach of s. 81(2) of the Crimes Act, 1958 (Vict.) ("the Crimes Act"), with which the Court dealt in Smith v. Jenkins [1970] HCA 2; (1970) 119 CLR 397 , attracted a pecuniary penalty alone or imprisonment alone or both pecuniary penalty and imprisonment. (at p654)

5. A breach of this regulation can consist of permission or allowance of a person, not being a workman engaged in maintaining the hoist, to ride on the hoist. The person so permitted or allowed also commits a breach of the regulation by his exercise of that permission or allowance by riding on the hoist. In the present case, there is no suggestion that the respondent rode on the hoist without such permission or allowance. Clearly, he was permitted or allowed by the hoist driver to use the hoist. Nor can there be any suggestion that either the driver or the respondent was unaware of the prohibition against a person such as the respondent riding on the hoist, or of the penalty attaching to the breach of that prohibition. Thus the respondent's presence on the hoist was in fact brought about by the co-operation of the driver of the hoist and the respondent, the one in breach of the regulation making possible the breach by the other. Both, in my opinion, were co-operatively engaged in breaking the regulation. Further, the effective use of the hoist by the respondent depended on the co-operation of the driver in driving the hoist with the respondent thereon. (at p655)

6. If the cause of the respondent's injuries were an act of some third person who owed a duty of care to the respondent, the illegality of the respondent's presence on the hoist would afford that person no defence if sued in negligence. The breach of the regulation would, indeed, in that case be irrelevant. If support for that position were necessary, it will be sufficiently found in this Court's decision in Henwood v. Municipal Tramways Trust (S.A.) [1938] HCA 35; (1938) 60 CLR 438 . (at p655)

7. But here, the act of which the respondent complains is the act of his co-operator in the illegal use of the hoist. It can properly and relevantly be said, in my opinion, that both the driver and the respondent were unlawfully using the hoist, and it was the manner of that use which was a cause of the respondent's injuries: it was not a mere circumstance without the existence of which the injuries would not have been received. In language not so often used in these times, it was an effective cause of them. In this case, the mutual relationship of the driver and the respondent in the use of the hoist was even closer than that of the two occupants of the car in Smith v. Jenkins [1970] HCA 2; (1970) 119 CLR 397 , a case to which I shall now turn. (at p655)

8. I have no need to recite the facts of that case. It is sufficient to say that the Court took the view that the plaintiff and the defendant in that case were jointly engaged in a breach of s. 81(2) of the Crimes Act. The breach was the use of a motor car without the consent of its owner. The statutory punishment was a fine of not more than 100 pounds or imprisonment for a term of not more than twelve months or both. The offence for which the section of the Crimes Act provided was in the nature of stealing but, because the conduct proscribed lacked an essential element of larceny in that there was no intention of permanently depriving the owner of his property in the subject matter, the penalty for the breach of the sub-section was to be considerably less than the penalty for larceny. The Court unanimously held that the plaintiff had no cause of action against the defendant for injuries which undoubtedly had been caused by the manner in which the defendant had controlled the motor car which both were using in contravention of the statute. The Court was not entirely unanimous in its reasons for that conclusion. The majority, it seems to me, expressed the view that a right of action in negligence was not available to the plaintiff because the plaintiff and the defendant were joint participants in the unlawful act out of which, because of the manner of the performance of that act, the injuries to the plaintiff arose. Kitto J. expressed his opinion that the plaintiff could not be allowed to recover because there was legal inseverability of the acts of the plaintiff and the defendant which amounted to a joint commission of an illegal act, and that there was no contribution or indemnity between the joint wrong-doers. His Honour stated that "persons who join in committing an illegal act which they know to be unlawful (or,... which they must be presumed to know to be unlawful) have no legal rights inter se by reason of their respective participations in that act" (1970) 119 CLR, at p 403 . Perhaps the two views were sufficiently summarized, though briefly, in my own reasons for judgment (1970) 119 CLR, at p 400 . But nothing can turn, in my opinion, upon the relatively small divergence in those views when the actual decision in that case is sought to be applied in this case. (at p656)

9. All the antecedent expressions of opinion relative to the effect of criminality of an act or occasion in the course of which injuries are sustained were canvassed in the course of the reasons given by the participating Justices in Smith v. Jenkins [1970] HCA 2; (1970) 119 CLR 397 . There is no need now to go over any of that ground. Suffice it to say that this Court has authoritatively decided that, where a plaintiff and a defendant have joined in the commission of an illegal act, neither has a cause of action against the other in negligence in respect of the manner in which the one has acted towards the other in the course of the commission of that act. (at p656)

10. It is proper to say, however, that none of the Justices called attention, as I have done, to the fact that for a first offence against the section a pecuniary penalty might be the only penalty imposed for the illegal conduct. But no Justice, as I read the reasons for judgment, laid any critical emphasis on the fact that imprisonment could result from the commission of the offence against the section of the Crimes Act. All the judgments laid importance on the joint participation of the plaintiff and the defendant in the commission of an act proscribed by the statute: that is to say, the emphasis was on the criminally unlawful or illegal quality of the act in which there was joint participation. (at p657)

11. After much consideration, I cannot find any distinction in point of basic fact or principle between this case and Smith v. Jenkins. True it is that in the latter the driver was in the car and using it, as it were, from within, whereas in the present case the driver of the hoist was outside the platform upon which the respondent was riding. That, it seems to me, is an immaterial distinction. The entry of the respondent upon the hoist was the counterpart of the permission given, perhaps tacitly, by the driver of the hoist. The use of the hoist by the respondent involved his participation in that use, both in permitting or allowing the respondent's entry upon it and by driving the hoist with the respondent upon it. The cause of the respondent's injuries was the particular manner in which the hoist was operated by the respondent's co-operator in its use. If it be held that the hoist was lowered in breach of reg. 139(7) - a matter with which I shall subsequently deal - the injuries of the respondent were caused by the motion of the hoist, a motion attributable to the co-operator in its use. On either view, the injuries which the respondent suffered resulted from the driver's failure to control the movement of the hoist, the failure resulting from his negligent use of the braking mechanism of the hoist. (at p657)

12. It was clearly unlawful for the hoist to be used with the respondent upon it. To use my own language in Smith v. Jenkins (1970) 119 CLR, at p 400 , the relationship of the driver and the respondent "was that of joint participants in the very act, itself unlawful in the sense I have mentioned, out of which the mischief to the respondent arose": or, in the language of Kitto J., there was here "joint illegal conduct" which was "the commission of a single wrong of which, as a whole, each participant is guilty" (1970) 119 CLR, at p 403 : or, in the language of Windeyer J., it is a case where "two ... persons participate in the commission of a crime" (1970) 119 CLR, at p 422 : or, in the language of Owen J., the relationship between the two was that of "criminals who are jointly engaged in carrying out a criminal venture" (1970) 119 CLR, at p 425 : or, in the language of Walsh J., "... the carrying out by one of the participants in a joint criminal enterprise of the particular criminal act in the commission of which they are engaged" (1970) 119 CLR, at p 433 . However, therefore, the circumstance critical to the effectiveness of a plea of illegality is expressed, this case satisfies in point of fact that requirement. (at p658)

13. There then arises the question, not resolved in Smith v. Jenkins but adverted to so far as reference was made to the remarks of Sugerman J. in Godbolt v. Fittock (1963) SR (NSW) 617, at p 623 , whether breach of a regulation, and particularly a regulation designed for the safety of workmen, which for present purposes I assume both the relevant regulations to be, can be differentiated from the breach of the provisions of the Crimes Act, such as that dealt with in Smith v. Jenkins [1970] HCA 2; ; (1970) 119 CLR 397 , so that joint participants in an act proscribed by regulation and visited with punishment in case of its breach either yet stand in relationship to one another as neighbours so as to attract a general duty of care and are not within the policy of the law which would deny a cause of action to such joint participants in the case of a breach of a provision of a Criminal Code or a Crimes Act. (at p658)

14. I am all too aware that to hold that a workman, who has been injured by the negligence of a fellow workman, has no cause of action because his injuries spring out of an illegal act jointly undertaken presents features of harshness which are not readily acceptable in the present-day world. One has only to remember the steady expansion of the law to protect workmen and their dependants against the consequences of industrial injuries to realize that to hold this respondent without remedy must look out of line with the law's development. The abolition of the doctrine of common employment had vast consequences for workmen who suffered by the negligence of their fellow workmen. Here, the respondent did in fact suffer by the lack of care of his fellow workman, treating the driver of the hoist, though in a different employment, as being relevantly a fellow workman of the respondent. Therefore there must be a tendency to find some ground of distinction in this case between a breach of a regulation such as those presently under consideration and breach of a traditional provision of the criminal law. (at p658)

15. But, on the other hand, the legislature has seen fit not merely to instruct workmen as to how they should act but to proscribe conduct and visit it with punishment. Further, in my opinion, to give to one of two co-operators in the breach of a statutory provision a cause of action founded on the manner in which the illegal act was performed is to considerably weaken the sanction of the law itself. For this conclusion it is not necessary to suppose that, in making the statutory provision, the legislature contemplated that no cause of action would arise out of its breach as between two or more co-operators therein. It is enough that the law itself so provides and that this can form part of the sanction to secure the observance of the statutory provision. I agree entirely with what Windeyer J. wrote in Smith v. Jenkins (1970) 119 CLR, at pp 424-425 , namely, that the matter cannot be resolved by looking for any indication in the statute or regulation. The basic rule is that there is no right of action for negligence by one such co-operator against another: that is to say, they are joint participants in an illegal act and the result of the conduct of one of them in the course of the performance of that act is the source of injury. ". . . the question is not whether a statute creating an offence also denies a remedy. Rather it is whether it preserves a remedy which otherwise would be gone, or - as I think it is correct to say - recognises an exception to the rule that a criminal cannot have the aid of the law in his complaint against his fellow." Consequently, bearing in mind the existence of what is called the basic rule, not to apply it in the case of a breach of a regulation is to diminish the punishment which the law requires in its desire to procure the observance of the law. (at p659)

16. After a good deal of consideration, I have come to the conclusion that the Court is not warranted in treating a breach of such a regulation as in any different case from a breach of a provision of a Criminal Code or a Crimes Act. Both have the moral condemnation of the community, each being visited by punishment as a means of securing its observance. The degree of moral antipathy to their respective breaches is reflected in the extent of the punishment prescribed. Beyond this I do not myself think there is any room for, as it were, a scale of significance for present purposes between breach of one law and another where each breach is subject to punishment. I am unable to find any distinction between such a case as Smith v. Jenkins and this case either because of the nature of the subject matter of the respective statutory provisions or in the nature of the punishment prescribed. The Court, in my opinion, is not entitled to do what the legislature, if it wishes, may of course do: that is to say, allow a course of action in negligence between co-operators in some, or for that matter, in all breaches of statutes which carry punishment of one kind or another. There seems to me no room for thinking that there is any less significance in the observance of what I will call broadly the industrial law than there is in the observance of those traditional crimes which are usually found in a Crimes Act or Criminal Code. (at p660)

17. I think one may be permitted the observation that there is a discernible tendency - a growing tendency, I think - for it to be thought that laws, or at any rate some laws, may be broken with impunity. It would be wrong, in my opinion, because of the hardship that the application of the basic rule in a case such as this would involve, to appear to encourage the view that there are some laws breach of which the community through the legislature has thought fit to visit with punishment which do not attract the application of that basic law. I have therefore come to the conclusion, and may I say with that proper reluctance which one should feel when an injured person is left without a complete remedy, that the respondent in this case had no cause of action against the appellant. Of course, the workers' compensation legislation remains available. The benefits of that legislation, which admittedly may not be as fully compensatory as the verdict of a jury might prove, do not rest on a lack of care. (at p660)

18. I now turn to the second of these matters, namely, whether there was in fact a breach of reg. 139(7), the terms of which are to be found in Jacobs J.'s reasons for judgment. In describing this difficulty, I have assumed that breach of the regulation would give rise to a civil action on the part of the injured workman. Because of the view as to breach which I am about to express, I do not feel that it is necessary for me to decide in this case whether such an action lies. Yet it is appropriate, it seems to me, that I indicate the reasons for the doubts I entertain as to whether a cause of action could be based on a breach of that regulation. The basis of the doctrine that breach of a statute which is designed to protect the safety of an individual may be the subject of a civil action is the presumed intention of the legislature that the prescription of a penalty for the breach of the statutory duty is not to be the sole remedy or consequence. The existence of the cause of action is founded, by implication, on the consideration of the whole of the facts and circumstances, including pre-existing laws, in the light of which the statutory provision is enacted. In general, the implication is made because the statute creates a duty in the interests of the safety of persons, and particularly of employees. Further, it may be taken that such an implication may be made in the case of a duty created by regulation: see Australian Iron and Steel Ltd. v. Ryan [1957] HCA 25; (1975) 97 CLR 89 . It is important to observe that the statutory cause of action is a cause of action for breach of a duty, a duty imposed expressly or impliedly by Act or regulation. It does not follow that breach of every regulation gives rise to a cause of action. It seems to me that it is only those regulations which impose duties which give rise to a cause of action. Darling Island Stevedoring and Lighterage Co. Ltd. v. Long [1957] HCA 26; (1957) 97 CLR 36 is illustrative of that proposition. (at p661)

19. The question thus arises as to whether reg. 139(7) is a regulation which has imposed a duty in the interests of the safety of persons, and in particular of employees. Two aspects arise in my mind about reg. 139(7): first, does it really impose a duty on the appellant, either as a member of the public or as an employer; secondly, does it impose that duty in the interests of the safety of the workman or of a class of which he is a member? (at p661)

20. It is at once observable that neither reg. 139(7) nor reg. 139 (25) is expressly addressed to employers. The second of these regulations, 139(25), quite evidently is addressed generally to all persons, no matter whether employers or workmen or not, both in the prohibition on riding on the hoist and in the prohibition on instructing, permitting or allowing any other person to do so. No doubt, in so far as the second paragraph of reg. 139(25) includes the word "instruct", there is room for regarding the employer as specifically included in the prohibition. But reg. 139(7) is evidently directed to the person in control of the hoist. No one else is in the position to raise or lower the hoist. Consequently, for that reason alone, I entertain a considerable doubt whether reg. 139(25) places a duty on the employer of the hoist driver. The situation is akin to that dealt with in Darling Island Stevedoring and Lighterage Co. Ltd. v. Long [1957] HCA 26; (1957) 97 CLR 36 . (at p661)

21. The premise of reg. 139(7) is that no workman, other than one employed in maintenance of the hoist, will be upon the hoist. Further, the mere excess in speed alone, 600 feet per minute, can scarce be thought in itself injurious to humans who may ride on the hoist, including maintenance men. Many lifts, as I understand, travel much in excess of that speed. I can, of course, understand that the required structure of the hoist is designed for relatively slow movement. Consequently, speeds in excess of the designed speed of the hoist when loaded may cause harm to the hoisting gear and thus render the hoist ineffective or even dangerous in that, in a loaded condition, it may crash to the ground with consequential injury to bystanders. Bearing in mind the position of the hoist on the outside of the building, these may well be mere passers by. But, in my opinion, this possibility does not warrant the conclusion that the regulation imposed on the employer any duty towards his or its employees, even if it be supposed that the employer as a person responsible for the operation of the hoist may be reason of the regulation owe a duty to the public at large. These are further reasons why I entertain considerable doubt whether reg. 139(7) imposes a duty on the appellant for the safety of his employees so that the creation of a cause of action for breach of the regulation may arise by implication. (at p662)

22. However, assuming as I do for the purpose of what follows that breach of reg. 139(7) does give rise to a cause of action, the question remains whether the facts of the case disclosed a breach of it. In this connexion, I do not pause to consider whether the word "load" includes a person. It is sufficient for my present purpose to read the regulation as if it read that a loaded hoist should not be raised or lowered in excess of the stated speed. I cannot think that it was any the less loaded for relevant purposes because it had a human being on board. But was it "lowered" in the sense of the regulation? The facts show that the hoist in its descent was out of control. Clearly, it was not placed out of control so that it might be lowered, and particularly lowered at a greater speed than 600 feet per minute. It is established that in its free fall it fell at a speed higher than that permitted. But a man who falls out of a balloon can scarce be described as being lowered: nor, if he descends with the basket in free fall, can he be said to be lowered because someone carelessly let go a fastening. In my opinion, the regulation, breach of which is visited with a penalty, refers to a controlled lowering and not to an accidental falling of the hoist. I see a significant difference in a controlled, though negligent, lowering of the hoist and a free falling of the hoist due to a negligent failure to maintain control of it. In my opinion, the facts did not establish a breach of reg. 139(7). Consequently, the respondent's claim in respect of a breach of reg. 139(7) ought to have been rejected, as the trial judge, in my opinion, quite properly did. (at p662)

23. The third matter refers to the setting aside of the jury's verdict and the reassessment of the damages by the Court of Appeal. The reassessment was by consent, though the resultant award of damages was not. Thus, such a question as arose in Shehata v. Montague L. Meyer Pty. Ltd. (1976) 51 ALJR 77 does not arise here. (at p663)

24. But the setting aside of the jury's verdict needs consideration. This appeal is from the decision of the Court of Appeal. I do not think it can be said that the Court of Appeal failed to appreciate the principle on which an appellate court should approach a claim that an award of damages is excessive or insufficient. That principle is well authenticated in the judgments of this Court. The Court of Appeal, approaching its task upon proper principles, concluded in substance that the verdict of the jury was unreasonable in relation to the award of damages. The question for this Court is whether or not it should interfere with the decision of the Court of Appeal, a decision which involves a judgment as to the relationship of an award of damages to the injuries of the respondent and to their consequences. Of course, error on the part of the Court of Appeal may be shown by the circumstance that there was plainly no ground on which the Court of Appeal could conclude that the award was so disproportionate as to be unreasonable. Thus, the question is, was the Court of Appeal in error in concluding that the jury's award was unreasonable? This really means was there no ground on which such a conclusion could be drawn? Whilst it remains a question of whether or not an available conclusion should have been drawn, I would think that a decision of the Court of Appeal as to the unreasonable disproportion of the jury's verdict ought not to be disturbed. As I earlier remarked, the appeal is from the decision of the Court of Appeal. It is only error in that decision which would call for this Court's consideration of what properly ought to have been awarded. (at p663)

25. I have come to the conclusion that it cannot properly be said that there was no ground on which the Court of Appeal could properly think that the jury's verdict was unreasonably disproportionate and therefore excessive in the relevant sense. The question is not whether this Court might or does entertain a different view. The principles on which an appellate court should interfere with an award of damages must apply equally when this Court is asked to set aside a decision in that connexion of an appellate court of a State. The reasons given by the Court of Appeal, in which its members were unanimous, do not so far lack logic or reason as to warrant the conclusion that they show no tenable ground for thinking that the jury's verdict was unreasonable. Indeed, on any view, I should think there is much to commend them, whatever other views might be entertained. Consequently, in my opinion, the decision of the Supreme Court on the question of damages ought not to be disturbed. (at p664)

26. In the result, in my opinion, the appeal should be allowed, the decision of the Court of Appeal set aside and a verdict entered for the appellant, the defendant in the action. In addition, the cross-appeal should be dismissed. (at p664)

STEPHEN J. I have had the opportunity of reading the reasons for judgment in this matter prepared by Jacobs J. I agree with his Honour's disposal of this appeal and cross-appeal and with his reasons for the conclusions to which he has come. (at p664)

MASON J. I have had the opportunity of reading the reasons for judgment in this matter prepared by Jacobs J. I agree with his Honour's disposal of this appeal and cross-appeal and with his reasons for the conclusions to which he has come. (at p664)

JACOBS J. The respondent was injured on 8th August 1969 when he was employed as a plumber on the site of a building in the course of erection at Darling Point, near Sydney. The building was of some twenty-five floors and on an outside face of the construction there was a hoist in a wire cage operated by means of a cable and drum. The operation was controlled from ground level by an operator, Mr. Facer. The hoist was raised by means of power transmitted to the cable and there was a clutch which enabled this power to be so transmitted. When power was not being transmitted, the cable and consequently the hoist would travel free in downward descent and its travel could be controlled by the operator by means of a foot brake. (at p664)

2. There was a lift designed for the carriage of men in the interior of the building but it went to the twelfth floor only. The respondent had work to do as a plumber on the twentieth floor. From the ground or first floor he entered the hoist platform on the outside of the building and Mr. Facer permitted or allowed him, together with another workman, so to do. There they joined five or six other men already there. The hoist platform was raised to the top floor, the operator intending to let the men off at various floors on the way down. Then the operator's foot slipped off the pedal of the brake and the hoist platform thus commenced to descend uncontrolled. The operator could not recover control until the platform had reached approximately the fourth floor but that was too late to stop the descent of the platform which crashed to the ground severley injuring the respondent. In the course of its descent it reached a speed of more than 600 feet per minute. (at p665)

3. Regulation 139(7) of the regulations made under the Scaffolding and Lifts Act, 1912 (N.S.W.) provides:

"The speed at which any load is raised or lowered shall
not exceed 600 feet per minute."

Regulation 139(25) provides:

"No person other than a workman engaged in bona fide
maintenance work shall ride upon the hoist platform, bucket,
or other medium by means of which loads are raised or
lowered.
No person shall instruct, permit, or allow any other person
so to do.
Provided this shall not apply in the case of hoists designed
and constructed in accordance with these Regulations for
raising and/or lowering men". (at p665)

4. The respondent sued the appellant on four counts of which the first and third are relevant to this appeal. The first count alleged that the appellant so negligently, carelessly and unskilfully conducted itself in the care, control and management of the premises and the operations and in the supervision, control, management and driving of the power hoist and in and about instructing, permitting and allowing the respondent to ride upon the said power hoist that the respondent suffered the injuries and damage claimed. (at p665)

5. The third count alleged that the respondent was employed by a sub-contractor of the appellant to work at the building work and that there was erected at the site of the building work a power hoist. It alleged reg. 139(7), which I have set out, and then alleged that the defendant/appellant by its servant and agents lowered the load at a speed exceeding 600 feet per minute whereby the plaintiff suffered the injuries in respect of which damages were claimed. (at p665)

6. As well as traversing various allegations in the counts, the appellant by its third plea pleaded contributory negligence. By its seventh plea, the appellant said that the respondent's injuries were suffered by him in the course of and in consequence of his participation in an illegal venture, namely of his riding upon the platform of a hoist not designed or constructed for the purpose of raising or lowering men in breach of the provisions of reg. 139(25) made under the Scaffolding and Lifts Act, 1912, he not being a workman engaged in maintenance work. (at p665)

7. By its eighth plea, the appellant pleaded that the respondent was injured whilst riding in a hoist which was not designed for, neither was it provided by the appellant for, use for raising persons contrary to reg. 139(25) and contrary to a notice prominently displayed pursuant to the Scaffolding and Lifts Act, 1912 and that thereby the respondent voluntarily agreed to accept the risks involved in riding in the said hoist as a result of which risks the respondent suffered the injuries in respect of which he sues. (at p666)

8. The matter came on for trial before Begg J. and a jury of four, and at the conclusion of the evidence Begg J. withdrew from the jury the issues raised by the seventh and eighth pleas. He also entered a verdict for the appellant on the third count. The jury found a verdict for the respondent on the first count in the sum of $139,360. It found that the respondent was guilty of contributory negligence to the extent of 33 1/3 per cent. There was therefore a verdict of $92,906.66. The jury answered two special questions at the request of the learned trial judge as follows:
1. Was Facer's conduct in allowing the plaintiff to get on the hoist and in driving it as he did within the sphere of what he was employed to do by the defendant company?
The jury answered this question "Yes".
2. Did the speed at which the hoist was lowered when the plaintiff was injured exceed 600 feet per minute, and if so were his injuries caused by reason therof?
The jury answered this question "Yes". (at p666)

9. The appellant defendant appealed to the New South Wales Court of Appeal and the respondent cross-appealed. The grounds of the appeal were that his Honour was in error in taking the seventh and eighth pleas from the jury, that there was no evidence that Mr. Facer in driving the goods lift upon which the plaintiff was injured and in driving it upon the journey in which the plaintiff was injured, was acting within the scope of his employment, that his Honour should have directed the jury to find a verdict for the appellant and that the damages were excessive. The grounds of the cross-appeal were that his Honour was in error in entering a verdict for the appellant on the respondent's third count. It should be noted that the importance to the respondent of this cross-appeal was that, if successful, he would be entitled to the whole verdict without the reduction consequent upon the finding of contributory negligence. The New South Wales Court of Appeal decided that the trial judge was correct in withdrawing the seventh and eighth pleas from the jury and was correct in leaving to the jury the question whether Mr. Facer, the hoist operator, was acting within the scope of his employment but allowed the appeal on damages and substituted a verdict of $115,359. It allowed the cross-appeal, thereby holding that the respondent was entitled to a verdict on the third count. As a consequence, therefore, judgment was given for $115,359. The Court of Appeal declined to allow it to be argued that the respondent was a trespasser upon the hoist and that there was no evidence that the appellant had fallen short of the standard of care owed to such a trespasser. (at p667)

10. There are appeals and cross-appeals to this Court. The appellant appeals upon substantially the same grounds as those upon which he was unsuccessful before the New South Wales Court of Appeal. In addition, it claims that the Court of Appeal was in error in refusing to allow it to argue that the respondent was a trespasser and, further, that the Court of Appeal was in error in entering a verdict for the respondent on the third count. The respondent's cross-appeal is upon the ground that the Court of Appeal was in error in its determination that the amount of the jury's verdict was excessive. (at p667)

11. It was hardly submitted as a separate ground of appeal before this Court that the Court of Appeal was in error in refusing to allow the appellant to argue that the respondent was a trespasser on the hoist and that the duty of care was only that owed to such a trespasser. To have allowed this matter to be argued for the first time on appeal was out of the question if there was any evidence fit to be submitted to the jury either on the question whether he was a trespasser or on the question whether, if he was, there had been a breach of the duty owed to him as such. It was therefore sought to associate this ground with the ground of appeal that there was no evidence that the operator Facer in driving the goods hoist on the actual journey upon which the respondent was injured was acting within the scope of his employment. I therefore turn to the latter ground. In my opinion there was no error. Mr. Facer was the operator of the hoist and he was operating it during working hours and of necessity at the place where it was situated at the building work. For him to allow or permit the respondent to ride upon the hoist platform was in breach of reg. 139(25) and may have been contrary to specific instructions given to him by the appellant. However, a breach of these instructions would not itself necessarily take the operation of the hoist beyond the scope of Mr. Facer's employment. There was evidence that it was a common practice to permit or allow persons to ride upon this hoist platform and that the foreman himself had ridden thereon. It is not necessary to elaborate upon this evidence which fell to be considered by the jury when it answered the judge's specific question upon this subject matter as it did. The circumstances are quite distinguishable from those cases where an employee causes an injury to another at a place where he had no authority to be or where the employee was at the time when he caused the injury doing work unconnected with that which he was engaged to perform. (at p668)

12. I turn to the plea of illegality. Here again, in my opinion, the trial judge and the Court of Appeal were correct. The act or omission of the hoist operator which was claimed to be negligent was not the act of allowing or permitting the respondent to ride upon the hoist but the act of negligently failing properly to operate the foot brake and control the descent of the hoist. A plea of illegality in answer to a claim of negligence is a denial that in the circumstances a duty of care was owed to the injured person. A duty of care arises out of the relationship of particular persons one to another. An illegal activity adds a factor to the relationship which may either extinguish or modify the duty of care otherwise owed. A joint illegal activity may absolve the one party from the duty towards the other to perform the activity with care for the safety of that other. That, it seems to me, is the effect of Smith v. Jenkins [1970] HCA 2; (1970) 119 CLR 397 . Where there is a joint illegal activity the actual act of which the plaintiff in a civil action may be complaining as done without care may itself be a criminal act of a kind in respect of which a court is not prepared to hear evidence for the purpose of establishing the standard of care which was reasonable in the circumstances. A court will not hear evidence nor will it determine a standard of care owing by a safe blower to his accomplice in respect of the explosive device. This is an example which gives no difficulty, but other cases can give difficulty in classification. (at p668)

13. In the present case the illegal activity was the riding by the respondent on the hoist driven by the appellant's servant, Mr. Facer, and the permitting and allowing of him so to ride. However, the relation of the illegality to the negligence complained of does not require an examination of any special aspect of the relationship between the participants which could affect the standard of care to be expected in the circumstances. Whether or not it was legal to ride on the hoist platform the same standard of care in operating the hoist would be expected of the operator, and the court would not be obliged to embark on an inquiry whether the act of the operator was reasonable, having regard to the illegality of the enterprise. On this ground alone the plea of illegality fails. (at p669)

14. Further, I do not think that the fact that the law declines to impose a duty of care towards a person engaged in a joint illegal enterprise in respect of that enterprise can be applied in a case where the illegality, if it be assumed to be so, is one which arises from the breach of specific statutory duties of care for the safety of one of the participants. The reason for the law declining to raise a duty of care towards a joint participant in an illegal enterprise in respect of the manner in which that enterprise may be carried out is wholly inapplicable to the circumstances of regulations designed to enforce a high specific duty to ensure the safety of that participant. (at p669)

15. I am also of opinion that Begg J. and the Court of Appeal were correct in the view that there was no issue for the jury on the eighth plea. It is quite clear that the respondent did not accept the risk that, being on the hoist, the operator would do, or omit to do, something which showed a lack of reasonable care for the respondent's safety once he was and was known by the operator to be on the hoist. The case might be different if the injury to the respondent had been caused by an occurrence inherent in the nature of a platform and hoist of this kind and if the cause of action had been based upon, say, failure to provide safe premises or safe means of access to work. There might then be a question for the jury whether he had voluntarily accepted the risk inherent in riding on the hoist platform. I say nothing of that. (at p669)

16. It remains to be considered whether the Court of Appeal was correct in entering a verdict for the respondent on the third count. I am satisfied that a breach of reg. 139(7) affords a private right of action to a person injured by an act done in breach of the regulation. The sub-regulation is in its context a measure designed to ensure the safety of persons on the site. It is not disputed that breach of reg. 139(7) gives a right of civil action to some persons, scil. persons on the site but not on the hoist itself, and maintenance men on the hoist itself; but it is submitted that because reg. 139(25) forbids workmen to travel on certain hoists, or to be allowed or permitted so to do, sub-reg. (7) is not intended for their protection. But this cannot be correct. Sub-regulation (7) applies to hoists designed and constructed for raising and for lowering men as well as to hoists for materials only. It happens that the hoist here in question was not designed and constructed in accordance with the regulations for the raising and/or lowering of men but this does not mean that sub-reg. (7) cannot be breached in respect of a hoist on which contrary to the sub-reg. (25) a workman is allowed or permitted to travel; and, if it can be breached, and it being a regulation designed to ensure the safety inter alia of persons travelling on the hoist, there is nothing in the sub-regulation or its context to suggest that there should be no right of civil action as a consequence of its breach by the person carrying out building work or by a person for whose acts the builder is vicariously liable. (at p670)

17. There is, next, the question whether the respondent's injury was caused by a breach of the sub-regulation. There are here two aspects, first, whether the word "load" in the sub-regulation refers only to materials and does not refer to men or men and materials and, secondly, whether the injury was caused by lowering the load. The word "load" is used throughout Pt XI of the regulations to describe that which is carried by cranes, hoists and lifts without particular regard to whether the load is of materials, or of men, or of both. See, for example, reg. 122(3) in relation to numerical classification of cranes, lifts and hoists according to their effective loads and the provision by reg. 122(3) (c) that every lift and every hoist used for raising and/or lowering men shall be deemed to be within classification 4. See also reg. 122(4) relating to notices exhibiting safe working loads and (5) prohibiting overloading. (at p670)

18. Particular requirements for hoists and lifts used for raising and/or lowering men appear, for instance, in reg. 127(66), (67) and (86) . But reg. 139, though no doubt primarily intended as a regulation of hoist towers used for the carriage of materials (see sub-reg. (3) and the accompanying table), does envisage an application to hoists designed and constructed in accordance with the regulations for raising and/or lowering men. Sub-regulation (25) for instance is expressed not to be applicable to lifts and hoists for raising and/or lowering men. It may be inferred that other parts of reg. 139 will apply to hoists so constructed unless expressed not to be applicable or unless any of them cannot in their nature be applied to a hoist or lift designed and constructed in accordance with the regulations for raising and/or lowering men. When regard is had to the use of the word "load" generally in Pt XI and to the fact that reg. 139(7) is in its nature as applicable to a load of men as it is to a load of materials, there is no indication that the word "load" in that sub-regulation is limited to loads of materials. (at p670)

19. Was the load being "lowered" at the relevant time? It was falling by force of gravity because the brake was not being applied. However, it must be borne in mind that the only method of lowering the lift was by ceasing wholly or partly to apply the brake. The reason why the operator ceased to apply the brake is not relevant since the obligation to apply it and thereby comply with the duty imposed by reg. 139(7) was an absolute one. A deliberate or an inadvertent failure to apply the brake would lower the hoist platform either with some degree of control or with no control. There is no distinction in kind between some degree of control and no control. It may therefore properly be said that in the case of a hoist operated in this manner such a hoist is lowered when the operator allows or permits it to fall by force of gravity and if thereby it attains a speed which exceeds the permitted speed, there is a breach of the regulation. (at p671)

20. I am therefore of the opinion that the New South Wales Court of Appeal was correct in its conclusion that the respondent was entitled to verdict and judgement on the third count. (at p671)

21. There remains the cross-appeal against the setting aside of the jury's verdict as excessive. There is no doubt and no doubt was expressed by the members of the Court of Appeal that the respondent suffered very serious injuries. He suffered severe fracture of the spine and also fracture of the left leg. For a time he was paraplegic. He ultimately regained the use of his legs and he returned to work with his former employer a year after his injury. However he could not resume his former work as a plumber. He was employed in the store but could not work at a bench, even doing the colouring of drawings. At the time of the trial he was aged twenty-nine. His condition at the time of trial was summarized by Samuels J.A. as follows:

"He could walk and drive a car, but with difficulty.
Because he had been left with considerably diminished control
of the right leg, producing what was described as a spastic
gait, he could not manage rough or uneven ground. He
tended to trip over very slight irregularities in floor surfaces.
He could neither stand nor sit at work with complete
comfort. He can never work again as a plumber and is employed
substantially as a storeman. According to Dr. Hugh Barry
he had lost about fifty per cent of the normal function of
the right leg, and twenty five per cent of that of the left. His
bladder function and control is impaired. He suffers from
urgency of micturition, and this causes both discomfort and
embarrassment. But even more importantly, his bladder
derangement involves the continued risk of infective
deterioration, capable of producing serious consequences. There was
evidence of some very slight reduction in his overall
expectation of life as a result. His bowel function too has been
affected; his control is lessened. His legs swell and he has
varicose veins. He cannot play sport; sexual intercourse
causes pain." (at p672)

22. The amount of the verdict was $139,360. Special damages and past loss of earnings amounted to $15,359. General damages for loss of future earning capacity and other heads were therefore in the vicinity of $124,000. The New South Wales Court of Appeal held that the damages awarded were excessive and reduced the total figure to $115,359. (at p672)

23. It appears to me that the Court of Appeal fell into error in their approach to the question whether the verdict was unreasonable. The error which I perceive is that in determining whether the verdict was unreasonable (as distinct from determining the proper amount of any substituted verdict in accordance with the agreement of the parties that they should, if necessary, do so) the Court reviewed the evidence as though it were obliged to perform the function which it has to perform when the appeal to it is by way of re-hearing from a verdict and judgment found by a trial judge sitting without a jury. It has often been stated that the trial judge sitting without a jury has a very wide discretion and the analogy has been drawn between his position and that of the jury in order to emphasize the width of the discretion which he has. Nevertheless it can be erroneous wholly to equate the verdict of a jury and the verdict of a trial judge. The Court on appeal is bound to review the evidence where the appeal is by way of re-hearing from a trial judge sitting alone. The nature of that review is the subject of considerable dissertation in the authorities but the obligation to review is not doubted. In the case of a jury's verdict the Court of Appeal has no power to review the evidence except for the purpose of determining what view on the evidence or on any particular aspect of it was reasonably open to the jury. The Court must assume that the jury took a view of the evidence most consistent with the size of the verdict which it returns. The main question in the present case for the jury was what degree of possibility the respondent had of continuing to exercise any earning capacity. The respondent was at the time of the trial and had been since twelve months after the accident employed by the appellant, not as a plumber but in the store performing such functions as answering the telephone, taking messages and making tea. Dr. Hugh Barry stated that the respondent was "completely unfit for work on the general labour market". It was very much a question for the jury whether his employment with his former employer was likely to continue, and for how long, and whether, if he lost that employment, there was any real chance of him obtaining other employment. It was open to the jury to take a very pessimistic view indeed of the respondent's future earning capacity. It has been suggested that Dr. Hugh Barry's words have to be given a limited meaning. It is true that they cannot be lifted out of their context but it was wholly a question for the jury what he meant by those words in their context. It seems to me that it was open to the jury to give them very great weight indeed. The jury could have taken the view that, apart from his current re-employment with the appellant, the respondent had no future earning capacity on the labour market. Then it was for the jury to determine in all the circumstances how long the re-employment might last. When this aspect of the matter, as well as the wide permissible area of decision open to a jury on the other heads of general damages, are taken into account, I am of the opinion that the New South Wales Court of Appeal fell into error in concluding that the amount of the jury verdict was so disproportionate to the injuries suffered that it was perverse and unreasonable and should be set aside. (at p673)

24. I would therefore dismiss the appeal, allow the cross-appeal, set aside the orders of the New South Wales Court of Appeal thereon and restore the verdict of $139,360. (at p673)

MURPHY J. I agree with Jacobs J. The appeal should be dismissed and the cross-appeal allowed. (at p673)

ORDER

Appeal dismissed with costs.

Cross-appeal allowed with costs.

Order of the Supreme Court of New South Wales (Court of Appeal Division), in so far as it allowed the appeal on damages to that Court and directed the entry of a verdict and judgment in the sum of $115,359, set aside and in lieu thereof order that that appeal be dismissed with costs and order that a verdict and judgment be entered in the action for the sum of $139,360.

(HIGH COURT OF AUSTRALIA.)
PROGRESS AND PROPERTIES LTD. . . APPELLANT;
DEFENDANT,
AND
CRAFT . . . . . . . . . . . . RESPONDENT.
PLAINTIFF.
ON APPEAL FROM THE SUPREME COURT OF NEW SOUTH WALES.