Leask Timber & Hardware Pty Ltd v Thorne [1961] HCA 73; (1961) 106 CLR 33 (16 November 1961)

HIGH COURT OF AUSTRALIA

LEASK TIMBER AND HARDWARE PTY. LTD. v. THORNE [1961] HCA 73; (1961) 106 CLR 33

Action

High Court of Australia
Dixon C.J. (1), McTiernan(2), Kitto(3), Taylor(4) and Windeyer(5) JJ.

CATCHWORDS

Action - Statute - Power cranes and power hoists - Offence to drive unless holder of a certificate of competency - Offence to employ, instruct or allow uncertificated person to drive - Injury resulting from use of power crane - Driver uncertificated - Action against employer of driver - Count based upon breach of statutory provision - Private right of action not created - Scaffolding and Lifts Act, 1912-1948 (N.S.W.), s. 17 (1) (3)*

HEARING

Sydney, 1961, August 8; November 16. 16:11:1961
APPEAL from the Supreme Court of New South Wales.

DECISION

November 16.
The following written judgments were delivered:-
DIXON C.J. The question which appears to me to lie at the heart of this case (N.S.W.) is to enact that it shall be an offence to drive or to authorize the driving of a power crane unless the driver possesses a certificate of competency to do so and, in so enacting, impliedly to give a civil remedy in damages to a member of the public who suffers personal injury by reason of a driving of the crane which is unlawful because the crane is driven without compliance with the condition. (at p36)

2. The question arises upon a demurrer to a count in a declaration. The plaintiff is a widow who sues under the Compensation to Relatives Act, 1897-1953 (N.S.W.) in respect of the death of her husband. The declaration is framed in a way which makes the case more difficult to understand that I think it need be; but in substance the question is whether a civil action flows from the death of a person through injuries sustained by the working of a power crane if the person driving the power crane does not possess a certificate authorizing him to do so. The plaintiff, for her cause of action and indeed for the form of her pleading, rests upon the case of Thorne v. Council of the Municipality of Bankstown (1954) 54 SR (NSW) 310; 71 WN 249 . It was a case in which a suit was brought under the Compensation to Relatives Act for damages in respect of the death of a man from injuries caused by the operation of a power crane which he himself was driving. He did not hold a certificate of competency as driver as required by the Scaffolding and Lifts Act. Herron and Brereton JJ., Maguire J. dissenting, held that a breach by an employer of the provision contained in sub-s. (3) of s. 17 forbidding him to employ, instruct or allow a person who is not the holder of a certificate of competency to drive a power crane conferred a cause of action upon a person injured thereby. Their Honours held also that a person so injured was entitled to a cause of action notwithstanding that he was himself the very driver of the crane who was uncertificated: accordingly that if he died of the injuries his widow might sue. Section 17 of the Scaffolding and Lifts Act, 1912-1948 makes provision in three sub-sections against the driving of a power crane or power hoist in various circumstances. Sub-section (2) need not be considered; it deals with a certificated driver exceeding the limitations of his certificate. It is sub-ss. (1) and (3) that matter in this case. As to sub-s. (1) it is enough to say that it provides in effect that any person who is not the holder of a certificate of competency as a power crane or power hoist driver is guilty of an offence if he drives a power crane or drives a power hoist used in building work or drives any other power hoist controlled from a platform or the like attached to and moving with the hoist unit. In the case of Thorne v. Council of the Municipality of Bankstown (1954) 54 SR (NSW) 310; 71 WN 249 , Thorne was offending against this provision when he met his death; for he was not the holder of a certificate of competency and yet was driving a machine falling within the class of machine covered by the sub-section. Sub-section (3) contains a prohibition against employing or instructing or allowing an uncertificated person to drive a power crane or the like. It provides that any person who employs, instructs or allows any person who is not the holder of a certificate of competency as a power crane or power hoist driver to drive such a machine is guilty of an offence. It is under these provisions that the case of the Municipality of Bankstown (1954) 54 SR (NSW) 310; 71 WN 249 was decided. I shall not discuss that decision at length. The judgments in the case contain much that it would be necessary carefully to consider were it not that there is a preliminary factor which, with all respect, I find an insuperable object to accepting the decision It lies in the fact that the person injured was himself the offender under sub-s. (1) and the person made liable was simply his employer offending against sub-s. (3). I find it impossible to construe s. 17 as meaning that, where a person employs or instructs or allows a man to drive a crane who himself offends by doing so, the latter if he is injured shall have a cause of action against the former. The person who employs or instructs or allows an uncertificated person to drive a power crane in effect occupies the statutory position of accessory before the fact. The person who drives the power crane, although he has no certificate, offends against sub-s. (1) and is in substance the principal offender. That is the manner in which the statute is framed and it seems impossible to suppose that the person offending under sub-s. (3) shall be liable to the person who is the principal offender under sub-s. (1). (at p37)

3. In the present case the dead man was not driving the crane. One may collect enough facts from the count in the declaration which is demurred to, and it appears that he was injured by the crane while it was driven by another person who was uncertificated, and died from his injuries. In these circumstances it appears to me that the only question is whether the employer who employed the uncertificated driver to drive the power crane is liable by virtue of s. 17(1) and (3) for damages in respect of the injuries from which the man died. (at p38)

4. For some reason which I have not quite understood, a great deal of discussion appears to have taken place in the Supreme Court both in the present case and in the case of the Municipality of Bankstown (1954) 54 SR (NSW) 310; 71 WN 249 concerning causation. The source from which the discussion sprang seems to me to be the aspect in which the statute was considered. It was considered rather as if it was concerned with the consequences of not possessing the required certificate, not of driving the crane unlawfully. Such a discussion will be seen in the report of the Bankstown Case (1954) 54 SR (NSW) 310; 71 WN 249 . I cannot myself understand how it can be said that the death either in the Bankstown Case (1954) 54 SR (NSW) 310; 71 WN 249 or in the present case in respect of which the action was brought could be attributed to the absence of a certificate of competency. Stated in that manner the issue raised would seem impossible. Plainly, as it seems to me, the death is caused by the driving of the crane. There appears to be no question about that in the demurrer. If you accept the fact that the man was killed by the operation of the crane, the only question that remains is whether the operation was unlawful and gave rise to a civil action in the person injured or those suing in respect of his death from his injuries. No question of causation arises. The sole question is whether when s. 17(1) or (3) forbids the operation of a crane without a certificate of competency it means that a civil right of action shall arise from the operation of a crane without fulfilment of the condition. After some doubt I have reached the conclusion that it does not do so. My reason depends on the manner in which the provision is expressed or, in other words, upon the structure of the section. It is easy to say that the effect of s. 17(1) and (3) is to prohibit the operation of any power crane or power hoist to which the sub-sections relate unless the person who drives the machine holds a certificate of competency. But while it must be acknowledged that this is the effect, it is not exactly what the section says. The section is addressed primarily to the driver and only secondarily to his employer. It is not framed in the passive and it makes it a criminal offence for the driver of the crane, who in the ordinary circumstances would be an employee, to drive a machine within the description if he be not the holder of a certificate of competency. Sub-section (3) then turns to a person employing, instructing or allowing him so to drive a machine. It is not the type of provision which prima facie one would treat as falling within the principles of interpretation so often expounded as the basis for implying a statutory civil remedy. The latest exposition by this Court is contained in Australian Iron and Steel Ltd. v. Ryan [1957] HCA 25; (1957) 97 CLR 89 . One can see that in a general way the purpose of s. 17 in creating the offences is to promote safety. But the provision proceeds by ensuring that the actual person who undertakes to drive one of the described machines holds a certificate of competency and making him the offender. One would not expect the actual driver to be placed in the position of being subject to civil liability for the consequences of his offence. The provision which touches the employer includes him as only one in a possible line or hierarchy of persons. Sub-section (3) includes not only those who employ but those who instruct and those who allow. This includes with the employer all his subordinates who instruct or allow the forbidden act as well as others who may do so. In all the circumstances I do not think s. 17 should be interpreted as creating a private right of action in a person injured by the driving of the crane by an uncertificated driver. (at p39)

5. Perhaps the result may be reached by stating the case in another way, a way which resembles more closely the aspect in which it seems to have presented itself in the Supreme Court. By that I mean it may be said that the essence of the offence is not the unlawful driving of the crane but the failure to hold a certificate of competency. If that be so I should find it impossible to see in the failure to hold a certificate of competency a source from which personal injury might flow as a matter of causation. However, is it not clear that it is the driving of the crane which must be the cause of the injury and for that to be actionable the prohibition of doing it without a certificate or authorizing it to be done unless by a certificated person must import a civil remedy? In my opinion the answer to this question is that no civil remedy is intended or is contemplated by s. 17. I think that the appeal should be allowed. (at p39)

McTIERNAN, J. The action to which the appeal relates is brought by the widow of an employee of the defendant for compensation in respect of damage resulting from his death. The plaintiff alleges that the death of her husband was caused by a breach of statutory duty imposed by the Scaffolding and Lifts Act, 1912-1948 (N.S.W.). The alleged breach is that the driver of a power crane employed by the defendant was not the holder of a certificate of competency under the Act. The deceased man met with a fatal accident whilst performing his duties in connexion with the operations in which the crane was being used. The plaintiff alleges that the accident was caused by the driving and operating of the crane. For the purposes of the demurrer this allegation must be taken to be correct. The duty alleged to have been disregarded by the defendant is created by s. 17(3)(a). This provision is in these terms: "Any person who employs, instructs or allows - (a) any person who is not the holder of a certificate of competency as a power crane or power hoist driver to drive any power crane or power hoist referred to in sub-section one of this section . . . shall be guilty of an offence against this Act". The question is whether the breach of this provision was a wrongful default which would have entitled the deceased to maintain an action and recover damages in respect thereof if death had not ensued. It should be mentioned that the action is brought under the Compensation to Relatives Act of 1897 (N.S.W.) as amended. (at p40)

2. In a previous case, Thorne v. Council of the Municipality of Bankstown (1954) 54 SR (NSW) 310; 71 WN 249 the Full Court of the Supreme Court of New South Wales decided by a majority that s. 17(3)(a) creates a statutory duty, the breach of which constitutes a cause of action. The Scaffolding and Lifts Act does not say whether or not an action lies in the circumstances in which the deceased was injured. It provides a penalty for breach of s. 17(3)(a). But this is not necessarily the only remedy intended by the Act for such breach. The object of the section and other provisions of the Act is directed to safety. The protection is intended for persons coming near a power crane on their lawful occasions, and employees engaged in the business in connexion with which the crane is being operated are clearly objects of the legislature's care in enacting the provisions. An employee has therefore a right to the protection afforded by the duty in question imposed on his employer that only a certificated driver shall operate such a machine as that to which s. 17(3)(a) applies. The question then is whether there is any indication of intention in the Act that an employee should not have the remedy of an action under the provision to enforce this right. The argument that there is such an indication is founded on the provision which, as is said, makes necessary a precaution which if taken may not prevent accident and the absence of which may not result in the occurrence of accident. For it is said that a certificated driver may operate the machine negligently and a driver who has not been certificated may nevertheless be competent to drive it. This, no doubt, is true, but nevertheless it is a reasonable view that the enforcement of the system of certificated drivers provided by the Act and the Regulations affords a substantial measure of protection to employees and members of the public generally having occasion to go near one of these power cranes while it is in operation. It would be negligence on the part of the employer to employ, instruct or allow a man to drive one of them unless he took reasonable steps to ascertain that he was competent enough to operate it safely; s. 17(3)(a) is directed to the performance of this duty of care in a particular manner by requiring the employer to employ only a driver who holds an official certificate of competency. A breach of the duty is punishable by a penalty enforceable by a prosecution. At the same time it is owed to the persons for whose protection it is created. Any of those persons who suffers injury as a consequence of its breach may maintain an action if the injury is caused by the machine while it is being operated by a driver who does not hold a certificate. The person who employs, instructs, or allows him to drive is liable to the sufferer unless it is shown that the accident occurred as a consequence of a cause for which the driver is not responsible. In my opinion the decision of the Full Court of the Supreme Court disallowing the demurrer is right and the appeal should be dismissed. (at p41)

KITTO J. The respondent was the plaintiff, and the appellant the defendant, in an action in the Supreme Court of New South Wales under the provisions of the Compensation to Relatives Act, 1897-1953 (N.S.W.) for damages for the death of the plaintiff's husband. By the second count of her declaration the plaintiff sought to present a case of breach of a statutory duty owed by the defendant to the husband, resulting in the death of the husband. The appellant demurred to this count on the general ground that it disclosed no cause of action, and on the more specific ground that the statute to which it refers does not create any duty for a breach of which an action for damages will lie. The Full Court overruled the demurrer, and from its judgment this appeal is brought by leave. (at p41)

2. The count begins with certain matters of inducement: that at all material times the deceased husband was employed by the defendant to work on certain premises in connexion with operations which required the use of a power crane of which the defendant was possessed, and that the crane was a power crane within the meaning of the Scaffolding and Lifts Act, 1912 (N.S.W.), as amended. Then follows an allegation which, not surprisingly, two of the learned judges below said that they found some difficulty in understanding, namely that the crane was to the knowledge of the defendant difficult to manoeuvre and drive and dangerous to persons including the deceased when driven by a driver not the holder of a certificate of competency under the said Act. The respondent does not now contend that this allegation has any materiality. Then begins the portion of the count which is still relied upon as disclosing a cause of action. It is interlarded with admitted irrelevancies. These being omitted, the allegations which remain and are relied upon by the plaintiff as disclosing a cause of action are these: that the driver of the crane employed by the defendant was not the holder of a certificate of competency under the said Act; that the deceased, whilst performing his duties in connexion with the said operations in which the power crane was driven, was wounded and injured by reason of the driving of the crane; and that by reason of his injuries the deceased afterwards and within six years next before the suit died, and the plaintiff and the deceased's daughter suffered damage. (at p42)

3. Thus shorn of embellishments and reduced to what the plaintiff regards as its essentials, the count seems on its face to offer an affront to logic. It is not supported as alleging a cause of action in negligence, nor could it be construed as doing so. The argument relied upon in order to uphold it as a good count in law may be reduced to two propositions. The first is that by reason of the provisions of the Scaffolding and Lifts Act a person for whom a power crane is driven owes, to persons in the position in which the plaintiff's husband was at the time he was injured, a duty for a breach of which a civil action will lie - that is to say a duty not to have as the driver of the crane a person who is not the holder of a certificate of competency under the Act. The second proposition is that between having as driver of the crane a person not the holder of a certificate of competency and the sustaining of a personal injury due to the driving of the crane there can be a causal connexion such as the law requires as a basis of liability. (at p42)

4. In the Supreme Court Evatt C.J. and Sugerman J., in a joint judgment, referred to difficulties which they saw that the case involved, but considered that they ought to follow an earlier decision given in the case of Thorne v. Council of the Municipality of Bankstown (1954) 54 SR (NSW) 310; 71 WN 249 . Their Honours had not been parties to that decision, but the third member of the Court, Brereton J., had in the earlier case joined with Herron J. to form a majority from whose opinion Maguire J. dissented, and in this case he re-stated and re-affirmed the views which he had there expressed. (at p43)

5. In Thorne's Case (1954) 54 SR (NSW) 310; 71 WN 249 the deceased had himself been the uncertificated driver of the crane by which he was injured; and because of that fact the question arose whether it might not be an answer to the plaintiff's case that the deceased, if he had survived, would not have been entitled to maintain an action in respect of his injuries because any action by him must have arisen ex turpi causa. No such question arises here. (at p43)

6. The relevant statutory provisions are found in s. 17 of the Scaffolding and Lifts Act, 1912-1948, a section which originated in s. 5 of the amending Act No. 38 of 1948. It is a section which relates to power cranes and power hoists, but we are concerned with it only in its application to power cranes, that is to say cranes driven by other than manual power: s. 4. Sub-sections (4) to (7) of s. 17 contain provisions for the issue of certificates of competency and ancillary provisions. Any person who possesses the prescribed qualifications and who, after inquiry and examination as prescribed, satisfies the Chief Inspector of Scaffolding and Lifts that he is trustworthy and competent to act as the driver of a power crane is entitled to a certificate of competency as a power crane driver, the certificate specifying the type and motive power of the power crane in respect of which he may act as driver and the purposes for which the power crane to which the certificate relates may be used. The decision of the chief inspector is subject to appeal to the Minister, who is to have a report from a board of reference. The Minister, upon receiving a report from that board that the holder of a certificate has ceased to be trustworthy or competent to act as the driver of a power crane of the type or motive power or for the purposes specified in the certificate, may suspend or cancel the certificate. A person who is not the holder of a certificate of competency as a power crane driver and drives a power crane, or who is the holder of a certificate and drives a power crane of a type or motive power or for purposes other than those specified in the certificate issued to him, is made guilty of an offence: sub-ss. (1) and (2). And sub-s. (3) makes guilty of an offence a person who employs, instructs or allows a person who is not the holder of a certificate of competency as a power crane driver to drive a power crane, or employs, instructs or allows a person who is the holder of a certificate of competency as a power crane driver to drive a power crane of a type or motive power or for purposes other than those specified in the certificate. (at p43)

7. The contention that sub-s. (3) operates to confer upon every person who may be endangered by the driving of a power crane a private right which is infringed if the driver is uncertificated, depends upon the principles discussed in this Court in O'Connor v. S.P. Bray Ltd. [1937] HCA 18; (1937) 56 CLR 464 , and Australian Iron and Steel Ltd. v. Ryan [1957] HCA 25; (1957) 97 CLR 89 , and in the House of Lords in Cutler v. Wandsworth Stadium Ltd. (1949) AC 398 . In the lastmentioned case both Lord Simonds and Lord Normand approved a passage in the speech of Lord Kinnear in Butler (or Black) v. Fife Coal Co. Ltd. (1912) AC 149 in which his Lordship said: "We are to consider the scope and purpose of the statute and in particular for whose benefit it is intended. 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 p44)

8. Looking, then, at the scope and purpose, the object, of s. 17(3), one must ask whether its intention is to compel those who have the ultimate control of power cranes to do anything, or to refrain from doing anything, for the benefit of persons who will be exposed to danger by its contravention. If it had prescribed safety measures to be observed in the driving of power cranes, either specifically identifying the measures or, as in Butler (or Black) v. Fife Coal Co. Ltd. (1912) AC 149 requiring in general terms the observance of due care and diligence, the conclusion might not be difficult that, by making compulsory the measures so described, the statute by implication created correlative private rights to have them observed. But s. 17(3) makes nothing compulsory save the holding by the driver of a certificate of competency. The legislature, in enacting this particular provision, has elected not to address itself to the topic of the taking of precautions in the interests of persons whom the driving of power cranes might endanger. The protection of such persons from the results of incompetency or untrustworthiness in the driving of power cranes is, clearly enough, the ultimate objective by reference to which the enactment of the provision is to be explained in terms of legislative policy. But the legislature has chosen to serve the end in view, not by requiring crane-owners to restrict the driving of cranes to competent and trustworthy persons, but by providing for a governmental check upon the competency and trustworthiness of drivers and, in order to render the check effective, making the holding of a certificate as to the result a statutory prerequisite of employment, instruction or permission to drive a power crane. The common law places upon a person who causes machinery to be used a duty to take reasonable care for the safety of persons imperilled by its use, and that duty is left by s. 17(3) without addition or substraction. All that is done is to provide for proof of a person's competence and trustworthiness to the satisfaction of officers of the government before the person may be allowed to drive a power crane. It is impossible to maintain as propositions of fact that until he gets his certificate he is incompetent or untrustworthy, and that the grant of the certificate makes him competent and trustworthy. In the Supreme Court the suggestion was made that the Act operates to create, upon the issue of a certificate, a statutory competency where before there was statutory incompetence; but there is nothing in the Act to support such a doctrine, and it cannot be accepted. In the final analysis the question whether s. 17(3) creates private rights depends upon the answer to be given to the second of the questions raised by the appellant's argument, namely, the question whether there can be a causal relation between, on the one hand, the lack of a certificate on the part of a person who is allowed to drive a power crane and, on the other hand, an injury sustained through the driving of the crane by that person. (at p45)

9. It may be conceded, as a general proposition, that a certificated driver is more likely to be competent than an uncertificated driver; but this is irrelevant. If a person is injured by the incompetent driving of a power crane, the cause of the injury is the incompetent conduct of the driver - that which he does or omits and would not have done or omitted if he had acted competently. The absence of a certificate, if he is uncertificated, is not the cause. And e converso the cause is still incompetent driving, even if he has a certificate. (at p45)

10. In the Supreme Court the learned judges who took the contrary view did so largely upon a reading which, with respect, seems mistaken, of the judgments delivered in the Court of Appeal in the case of Monk v. Warbey (1935) 1 KB 75 . That was a case concerning a statute which made it unlawful for a person to permit another to use a motor vehicle on a road unless a third-party policy of insurance was in force in relation to the user of the vehicle by that other. The owner of a motor car lent it to a person to use without a third-party cover. The bailee's agent by negligent driving of the vehicle injured the plaintiff. The plaintiff proved that neither the bailee nor the agent had the means to pay damages, and he was held entitled to recover against the owner. It is not for us to say here whether the case was rightly decided on the terms of the English statute; but, expressed in general terms, all that seems to have been decided is that if the purpose and operation of an Act is to compel a person who permits the use of a motor vehicle to see that a third-party policy protects anyone who receives injury by the use of the vehicle, a correlative right may arise in persons exposed to such injury to have the intended protection; and that if the right exists there is a case for damages if the duty is not performed and as a result a right to damages which would have been enforceable against an insurance company proves to be in fact valueless. Plainly, there is no analogy with the problem before us in the present case. The proposition that the injury which caused the death of the appellant's husband may be shown to have been due to the fact that the crane driver held no certificate is logically untenable. (at p46)

11. In my opinion the decision in Thorne v. Council of the Municipality of Bankstown (1954) 54 SR (NSW) 310; 71 WN 249 should be overruled and the appeal in the present case should be allowed. (at p46)

TAYLOR J. The reasons why, in my view, it is inevitable that this appeal should be allowed have been fully stated by the Chief Justice and Kitto J. I agree entirely with their observations and have nothing to add. (at p46)

WINDEYER J. Persons who would drive power cranes are required to have certificates under the Scaffolding and Lifts Act, 1912-1948 (N.S.W.). A certificate can only be obtained by a person who, having certain initial qualifications, has satisfied the inspector that he is trustworthy and competent to act as the driver of a power crane. Possession of a certificate means that the driver has satisfied an inspector that he can drive a crane competently, and is a trustworthy person. If, however, he fails to exercise the competence he has and drives a crane improperly, unskilfully and negligently, it will not avail him or his employer that an inspector had certified that he was capable of doing so properly and skilfully; nor is it material that an inspector thought he was trustworthy if trust in him should prove misplaced. On the other hand, a person might have skill and competence but no certificate. If he drives a crane carefully, skilfully and competently then he is not liable in negligence for the consequences of an accident that occurs without fault on his part. That is how the matter would stand in an action for negligence. (at p47)

2. But here it was contended, as I understood it, that, if a person was injured as the result of the operation of a crane then being driven by a man who did not have a certificate, the employer of that driver would be liable, however the accident happened. This, it was said, was an absolute liability unrelated to negligence. But in my opinion it is not so. It is an offence to drive a crane without a certificate or to employ an uncertificated driver: s. 17. But I agree with the Chief Justice and with Kitto J. that it is not an illegality that of itself creates a civil right of action. I need add nothing to what they have said on this. I agree that the appeal should be allowed. (at p47)

ORDER

Appeal allowed with costs. Rule of the Supreme Court discharged. In lieu thereof order that the defendant's demurrer to the second count of the plaintiff's declaration be allowed and that the plaintiff do pay the costs of such demurrer.