General Constructions Pty Ltd v Peterson [1962] HCA 48; (1962) 108 CLR 251 (20 September 1962)

HIGH COURT OF AUSTRALIA

GENERAL CONSTRUCTIONS PTY. LTD. v. PETERSON [1962] HCA 48; (1962) 108 CLR 251

Scaffolding and Lifts (N.S.W.)

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

CATCHWORDS

Scaffolding and Lifts (N.S.W.) - Regulation - Plaintiff working astride wall eight feet high - Nailing wooden beadings on instructions of defendant's foreman - Fall resulting in injury - Duty to provide means by fencing or otherwise for securing the safety of any person working at a place from &which he would be liable to fall a distance of more than six feet - Meaning of "place" - Test of reasonable foreseeability - Quantum of damages - Scaffolding and LiftsAct, 1912-1958 (N.S.W.) Regulations, reg. 73 (3)*.

HEARING

Sydney, 1962, August 10, 13, 14; September 20. 20:9:1962
APPEAL from the Supreme Court of New South Wales.

DECISION

September 20.
The following written judgments were delivered:-
DIXON C.J., TAYLOR AND OWEN JJ. This is an appeal from an order of the Full Manning JJ.) dismissing an appeal by the defendant in an action in which the plaintiff recovered a verdict for 13,283 pounds as damages for personal injury. The plaintiff's case was based upon an alleged breach of the duty imposed by reg. 73 (3) of the regulations made under the Scaffolding and Lifts Act but, as their Honours in the Supreme Court rightly pointed out, the count in the declaration upon which the plaintiff recovered his verdict did not properly set out the cause of action. No point was made of this, however, at any stage of the proceedings and the case has proceeded throughout as though the pleader had pleaded correctly. (at p254)

2. Regulation 73 (3) 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 minimize 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 - provide means by fencing or otherwise for securing the safety of any person working at a place from which he would be liable to fall a distance of more than six feet." (at p254)

3. The first submission made in support of the appeal was that the learned trial judge should have directed the jury to return a verdict for the defendant on the ground that, for a number of reasons, the sub-regulation had no application to the circumstances of the case, whatever view of the facts might have been taken by the jury. (at p254)

4. The plaintiff's case was to the following effect: In October 1953, when he was injured, he was employed by the defendant as a carpenter working on the construction of a bulk wheat terminal at Parkes. A concrete internal wall, about twenty feet long and eight feet high, was to be erected in the building on the ground floor level and for this purpose a box frame had been set up into which some of the concrete had been poured. The sides of the box frame consisted of metal "shutters" and at the top of each shutter there was a flange turned outwards. The top of the frame was about eight feet above floor level. The plaintiff said that he was instructed by his foreman to nail wooden beadings on the flanges along the top of the shutters so as to raise the height of the box frame by about an inch in order to prevent the concrete from running over the top when it was poured. He said that no ladder or scaffolding of any kind was provided and that he climbed up to the top of the frame by means of a series of purlins of 4 x 4 inch timber which ran longitudinally along the shutters and were bolted to them. He proceeded to nail the beading on top of the shutters by driving the nails through bolt holes in the flanges and bending the nails over underneath and, in order to do this, he either stood or squatted astride the frame with his feet on the top line of purlins. He said that he had finished fixing the beading and was picking up one of his tools when he slipped and fell to the floor, striking the back of his left hip in the course of his fall on a bolt projecting from the side of the shutter. The case sought to be made at the trial by the defendant was that the plaintiff had never been on top of the box frame at all and that his injuries, if he had been injured, were not caused in the way he had described, but it is obvious that the jury accepted the plaintiff's account of what had occurred. (at p255)

5. For the defendant, it was contended before us, although not at the trial or in the Full Court, that reg. 73 (3) had no application because the top of the box frame on which the plaintiff was working when he fell was not a "place" within the meaning of the sub-regulation. The meaning of that word, counsel submitted, was limited by the earlier words "by fencing or otherwise". The word "otherwise", he said, should be read ejusdem generis with "fencing" and, when so read, the sub-regulation applied only to a "place" at which an employee's safety might be protected by the provision of fencing or a similar safeguard. The top of the box frame was not such a "place" and reg. 73 (3) had therefore no application. But the suggested construction of the sub-regulation is unduly limited. Giving the words used their natural meaning, the words "by fencing or otherwise" mean "by fencing or by some other means" and the words "working at a place from which he would be liable to fall" mean "working where he is exposed to the risk of falling". The sub-regulation was therefore capable of applying in the present case since, according to the plaintiff, he was working where he would be exposed to the risk of falling a distance of more than six feet and no protective safeguard was provided. It was then submitted that reg. 73 (3) requires the employer to provide the necessary safety measures only at such places as he knows or might reasonably foresee would be used by an employee for the purposes of carrying out his work and that there was no evidence to establish either of these matters. Whether or not the first part of this submission is correct need not be debated beyond saying that the purpose of the sub-regulation is to safe-guard employees who are acting within the scope of their employment. The plaintiff's evidence, if accepted, showed that he was so acting and there was, in any event, evidence on which the jury could properly have concluded that the foreman who instructed the plaintiff to put the beading on top of the shutters would or should have realized that, in the absence of a ladder or some form of trestle or other platform upon which to stand, the plaintiff would climb as he did on to the top of the box frame and there nail down the beading. The Full Court therefore rightly rejected the submission that the learned trial judge should have directed the jury to find a verdict for the defendant. (at p256)

6. Finally it was contended that the amount of damages awarded was excessive. The injuries of which the plaintiff complained were to his spine resulting from the fall and the striking of his hip against the protruding bolt. There was evidence that one result was that it later became necessary to remove portion of the disc between his fourth and fifth lumbar vertebrae and that a further result was some degeneration of an adjoining disc, leaving a permanent weakness in the lower part of the plaintiff's back accompanied by pain and producing inability to undertake work involving lifting or frequent bending of the back. It was clearly open to the jury to find that the plaintiff would not again be able to follow his trade as a carpenter and that his earning capacity had been greatly impaired. The evidence as to his loss of earnings from the date of the accident until the date of the trial in September 1961, nearly eight years later, is not easy to follow but there appears to have been material on which the jury might have concluded that between those dates that loss amounted to as much as 6,000 pounds. At the date of the trial the plaintiff was forty-seven years of age and the evidence, as their Honours in the Full Court said, would have justified the view that for the remainder of his working life his economic loss would have been from 350 pounds to 400 pounds a year. In these circumstances the Full Court properly considered that the amount awarded could not be said to be beyond the bounds of reason. The appeal should be dismissed. (at p257)

McTIERNAN J. In my opinion the judgment of the Full Court of the Supreme Court of New South Wales should be affirmed. I think that the reasons of their Honours are entirely correct. (at p257)

WINDEYER J. I agree that the case was not one in which the jury should have been directed to find a verdict for the defendant. (at p257)

2. Although it was not argued, I am somewhat doubtful whether reg. 73 (3) under the Scaffolding and Lifts Act, 1912-1958 does create a statutory duty a breach of which, apart from any question of negligence and without any consideration of contributory negligence, gives rise in all cases to a right of action. It seems intended to state or describe a situation in which a duty of care arises rather than to prescribe or define precisely the means that must be taken to meet that situation. It may be that reg. 73 (3) was not intended to cover a case of this sort where, for a very temporary purpose, an employee chose to get upon a structure more than six feet above the ground, when he could have performed the task he was set by simply getting a ladder or trestle or some other platform about four feet high and working from it. But the declaration in the action alleged facts bringing the case literally within the regulation. The defendant by its pleas put those facts in issue. It did not dispute that those facts, if proved, would establish a cause of action. It fought the case on the facts, alleging that the plaintiff was not injured in the way he said he was. The jury must be taken to have found the issue of fact in favour of the plaintiff. It seems to me far too late to consider now questions of the construction of the regulations or of their effect which are not raised by the pleadings and were not raised at the trial. (at p257)

3. As to the damages, no ground was, I think, shown for us to interfere with the decision of the Full Court. (at p257)

4. I would dismiss the appeal. (at p257)

ORDER

Appeal dismissed with costs.