Australian Iron & Steel Ltd v Ryan [1957] HCA 25; (1957) 97 CLR 89 (3 May 1957)

HIGH COURT OF AUSTRALIA

AUSTRALIAN IRON AND STEEL LTD. v. RYAN [1957] HCA 25; (1957) 97 CLR 89

Action

High Court of Australia
Williams(1), Webb(2), Fullagar(3), Kitto(4) and Taylor(5) JJ.

CATCHWORDS

Action - Duty imposed by regulation - Breach - Person thereby injured - Validity of regulation - Whether private right of action created - Scaffolding and Lifts Act 1912-1948 (N.S.W.) (No. 38 of 1912 - No. 38 of 1948), s. 22 (2) (g) (v) - Scaffolding and Lifts Regulations, reg. 73 (2) (5).

HEARING

Sydney, 1956, November 13, 14; 1957, May 3. 3:5:1957
APPEAL from the Supreme Court of New South Wales.

DECISION

1957, May 3.
The following written judgments were delivered:-
WILLIAMS J. This is an appeal by leave from an order of the Full Supreme plaintiff. The order was made in an action in which the plaintiff, Ryan, intended to sue the defendant company, the present appellant, for damages in respect of injuries alleged to have been caused by the failure of the defendant to perform the duties imposed upon it by sub-regs. (2) and (5) of reg. 73 of the regulations made under the Scaffolding and Lifts Act 1912-1948 (N.S.W.). The demurrer came on for hearing before Roper C.J. in Eq., Ferguson and Manning JJ. and it soon became apparent, as in the case of Long v. Darling Island Stevedoring and Lighterage Company Ltd. (1956) SR (NSW) 387; 73 WN 570 , that the two counts in the declaration were, as was the one count in that case, quite inadequate to allege the causes of action on which the plaintiff intended to rely. Their Honours in their joint reasons for judgment referred to the serious deficiency of the demurrer book to raise the real questions of law at issue between the parties and to an agreement by counsel that the counts should be read as properly alleging breaches of these sub-regulations (1956) SR (NSW) 329, at pp 330-332; 73 WN 432, at pp 432-434 . But, as in Long's Case (1956) SR (NSW) 387; 73 WN 570 , no amendments were actually made to the pleadings to cure this deficiency. One can agree whole-heartedly except for its moderation with the statement in the joint reasons that in the event of an appeal it is preferable that the appellate tribunal should have regard to the pleadings to see what were the issues decided, rather than to the fallible recollection of counsel. (at p94)

2. Their Honours said that the substantial question raised by the demurrer was whether the sub-regulations in question or either of them confer civil remedies on persons injured by the breach thereof without the necessity of proving negligence. Their Honours then proceeded to discuss a number of questions which have been discussed by us in Long's Case [1957] HCA 26; (1957) 97 CLR 36 and that discussion need not be repeated. Regulation 73 of the Scaffolding and Lifts Regulations is the first regulation in Pt. V - a Part which is intituled "Safeguards and measures to be taken for securing the safety and health of persons engaged in building work". The regulation provides that "Any person who directly or by his servants or agents carries out any building work shall take all measures that appear necessary or advisable to minimise accident risk and to prevent injury to the health of persons engaged in such building work and for this purpose, without limiting the generality of the foregoing, he shall (inter alia) - (2) provide and maintain safe means of access to every place at which any person has to work at any time; (5) keep all stairways, corridors and passageways free from loose materials and debris, building materials, supplies and obstructions of every kind." It can be said of these two sub-paragraphs (and it is with these sub-paragraphs only that we are concerned) that each of them creates duties of the kind that are likely to create a civil right in favour of persons liable to suffer injury if they are not performed correlative to the extent of the duty for the breach of which the persons who fail to perform them can be prosecuted. But the same objections were raised to the existence of such a correlative right in a regulation as were raised to its existence in reg. 31 of the Navigation (Loading and Unloading) Regulations in Long's Case (1956) SR (NSW) 387; 73 WN 570 . These objections were all disposed of by the Supreme Court adversely to the defendant and have been similarly disposed of by this Court in Long's Case [1957] HCA 26; (1957) 97 CLR 36 . They may be summed up as contentions that the two sub-regulations gave the plaintiff no civil rights of action because the Scaffolding and Lifts Act under which they were made did not empower the Governor-General to make regulations which could be enforced otherwise than by penalties not exceeding fifty pounds for any breach thereof. (at p95)

3. The power to make regulations is contained in s. 22 of that Act. It authorises the Governor in Council to make regulations relating to "(g) (iv) the manner of carrying out building work, excavation work or compressed air work; (v) safeguards and measures to be taken for securing the safety and health of persons engaged in building work, excavation work or compressed air work, or at or in connection with cranes, hoists, lifts, plant, scaffolding or gear." Section 22 also provides that "(4) A regulation may impose a penalty not exceeding fifty pounds for any breach thereof." The two sub-regulations under challenge fall well within the ambit of these regulation-making powers. They are regulations which impose duties intended to safeguard the safety of persons engaged in building work and they are regulations which require specific precautions to be taken which if not observed may cause such persons to suffer injury. Unlike reg. 31 of the Navigation (Loading and Unloading) Regulations they are imposed on the employer personally and he is therefore under a duty to see that they are observed not only by himself but also by his servants and agents and even by independent contractors. The contention that regulations such as these duly made under a delegated power should not be construed so as to create the correlative civil right which they would create if a statute was passed to the same effect has already been discussed and disposed of in Long's Case (1). The general opening words of reg. 73 were criticised as being too vague and uncertain to be a valid exercise of the power to make regulations conferred on the Governor in Council and even if valid too vague and uncertain to create any definite civil right of action. We are not concerned with the validity or effect of these general words. We are only concerned with two specific sub-regulations the language of which is not imprecise. They are in themselves separate and independent exercises of the regulation-making power and well within its terms. They are just as precise as many of the regulations made under Imperial statutes which have been held to create a civil cause of action. Their Honours of the Supreme Court were right in deciding all the questions of law in favour of the plaintiff and the appeal should be dismissed. (at p96)

WEBB J. I would dismiss this appeal for the reasons given by Williams J. (at p96)

FULLAGAR J. For reasons which appear in the course of what I have said in Darling Island Stevedoring & Lighterage Co. Ltd. v. Long [1957] HCA 26; (1957) 97 CLR 36 I am of the opinion that this appeal should be dismissed. (at p96)

KITTO J. Sub-regulations (2) and (5) of reg. 73 made under the Scaffolding and Lifts Act 1912-1948 (N.S.W.) provide that any person who, directly or by his servants or agents, carries out any building work shall provide and maintain safe means of access to every place at which any person has to work at any time, and shall keep all stairways, corridors and passageways free from loose materials and debris, building materials, supplies and obstructions of every kind. (at p96)

2. The decision of the Supreme Court of New South Wales (1956) SR (NSW) 329; 73 WN 432 which is the subject of this appeal is that an action will lie for damages for injuries caused to a person engaged in building work by infringements of these provisions. (at p96)

3. Regulation 73 is found in Pt. V of the Regulations (Rules and Regulations, 1950, p. 164), the general heading of the Part being "Safeguards and measures to be taken for securing the safety and health of persons engaged in building work". These words are taken from s. 22 (2) (g) (v) of the Act, which authorises the making of regulations relating to such safeguards and measures. A contention on the part of the appellant was that the express provisions of sub-regs. (2) and (5) were not within the power thus conferred, having regard especially to a degree of uncertainty which was attributed to them in the context in which they appear. I am unable, however, to see any reason to doubt their validity. I adopt what has been said on this point in the judgment of the Supreme Court. (at p97)

4. It is clear enough, I think, that if the provisions of sub-regs. (2) and (5) of reg. 73 had appeared in the Act itself the law would have treated them, even though the Act had provided a penalty for breach, as implying that private rights to their due observance should exist, and would accordingly have given damages to "persons engaged in building work" who should be injured by their non-observance. The contrary could hardly be maintained in view of what was said by Dixon, Evatt and McTiernan JJ. in O'Connor v. S. P. Bray Ltd. [1937] HCA 18; (1937) 56 CLR 464 . Mutatis mutandis, some words of Lord Kinnear in Black v. Fife Coal Co. Ltd. (1912) AC 149 which were approved by Lord Simonds and Lord Normand in Cutler v. Wandsworth Stadium Ltd. (1949) AC 398, at pp 407-408, 413 would have been exactly in point: "Now the object of the present statute is plain. It was intended to compel mine owners to make due provision for the safety of the men working in their mines, and the persons for whose benefit all these rules are to be enforced are the persons exposed to danger. But when a duty of this kind is imposed for the benefit of particular persons, there arises at common law a correlative right in those persons who may be injured by its contravention" (1912) AC, at p 165 . (at p97)

5. The provisions, however, are not contained in the Act. They are only in a regulation. The Act provides in s. 22 (4) that a regulation may impose a penalty not exceeding 50 pounds for any breach thereof, and the regulations in fact provide for a penalty for any breach of their provisions: reg. 164. The major premiss of the appellant's argument seems to be that before it can be held that a breach of a regulation entitles a person injured therby to recover damages two steps must be taken: first there must be found expressed or implied by the language of the regulation an intention on the part of the Executive to give to the persons for whose protection the provisions are made a right to recover damages for injuries resulting from breach; and secondly it must be found that the regulation-making power authorises the Executive to make regulations manifesting such an intention. The minor premiss is that upon a consideration of the regulation and the Act here in question these steps cannot be taken - indeed, that neither of them can be taken. It was along such lines that the Full Court of New South Wales appears to have considered a similar problem in Haylan v. Purcell (1948) 49 SR (NSW) 1; 65 WN 228 . (at p98)

6. The major premiss, however, is based upon the false assumption that the existence of a private right to the observance of specific requirements of a law depends upon there being discovered by a process of verbal interpretation a disclosure of a positive intention to create such a right. That the assumption cannot be supported may be seen from many cases, including those which have been cited, showing that in respect of a provision contained in an Act an implication that private rights are created does not necessarily, or even generally, depend upon discerning in the words used a manifestation of an actual intention on the part of the draftsman to create such rights. It depends, of course, on "a consideration of the whole Act and the circumstances, including the pre-existing law, in which it was enacted": per Lord Simonds in Cutler v. Wandsworth Stadium Ltd. (1949) AC, at p 407 ; but, as is indicated by the words of Lord Kinnear which I have quoted, it is generally in a consideration of what the provision does, in the nature and purpose of the provision, that the law finds its warrant for making the implication. Thus Lord Reid in Grant v. National Coal Board (1956) AC 649 said: "The question whether an employer is liable to an employee for injuries caused to him by breach of a statutory duty depends on whether there can be implied from the terms of the statute imposing the duty an enactment that the employer shall be so liable. In general that is implied from the enactment of a duty in the interest of the safety of employees" (1956) AC, at p 659 . Then what of a regulation such as we have here to consider? The hypothesis must be, and it is the case here, that the express provisions of the regulation are within the regulation-making power. Their operation, then, is authorised. But if so, it must follow that any implication which such an operation warrants is authorised also. In the last analysis, it is upon the true construction of the statutory provision which authorises the regulations and gives them the force of law that the conclusion depends that a private right to compliance with the regulations exists. (at p99)

7. In my opinion the conclusion reached by the Supreme Court was right, and the appeal should be dismissed. (at p99)

TAYLOR J. In my opinion this appeal should be dismissed. I agree entirely with the reasons of the Full Court and have no wish to add to them. (at p99)

ORDER

Appeal dismissed with costs.