Canny, J.M. v John Pfeiffer Pty Ltd t/as & John Pfeiffer Constructions

[1980] FCA 189

Re: JOHN MICHAEL CANNY
And: JOHN PFEIFFER PTY. LTD. t/as JOHN PFEIFFER CONSTRUCTIONS AND AARO JARVIN
(1980) 49 FLR 232
No. 12 of 1979
Master and Servant

COURT

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY
DISTRICT REGISTRY
GENERAL DIVISION
Connor(1), Evatt(1) and Keely(1) JJ.

CATCHWORDS

Master and Servant - Industrial accident - Regulation requiring master to employ qualified operator to use Ramset tool - whether breach gives rise to civil right on part of servant injured by projectile discharged from tool by unqualified operator - Whether breach a cause of servant's injuries.

Master and Servant - Industrial accident - Regulation requiring master to employ qualified operator - Whether breach of regulation gives rise to civil action - Whether breach cause of injuries - Scaffolding and Lifts Act, 1912 (N.S.W.) - Scaffolding and Lifts Regulations, reg. 118A-118H.

HEADNOTE

The appellant was injured in 1971 on a building site where he was working as an employee of the contractor, the first respondent. The second respondent was a sub-contractor who employed a youth who was operating a nail gun at the material time. The appellant was injured by a nail fired from the gun. At trial it was established that the youth who fired the nail gun was temporarily employed by the first respondent. However, on the evidence the trial judge felt unable to say that the youth had been negligent and therefore was not satisfied that any negligence had caused the injury to the appellant for which the first respondent could be vicariously responsible. It was established that Pt. IXA of the Scaffolding and Lifts Regulations (N.S.W.) as applied to the Australian Capital Territory was applicable to the building work in question. By reg. 118A (2):

"Qualified Operator' means a person who -

(a) is over the age of eighteen years;

(b) has been thoroughly trained in the correct use, adjustment, assembly and taking apart of explosive-powered tools;

(c) has been fully instructed as to the dangers associated with explosive-powered tools and the precautions to be taken in respect of them; and

(d) has a thorough knowledge of this Part of these Regulations."

By reg. 118B (1):

"(a) No person who is not a qualified operator shall use a tool in any work.

(b) No person shall employ, instruct or allow any person to use a tool in any work without first ensuring by proper enquiry that such person is a qualified operator and is not by reason of any infirmity, disability or incapacity unfit to use such tool."

The youth who fired the projectile was not "a qualified operator" within reg. 118A (2) of the regulations and the first respondent was therefore in breach of reg. 118B (1) (b) thereof.

Held: (1) Regulation 118B placed a direct responsibility on the employer, the first respondent, to ensure that the operator of, inter alia, a nail gun was both qualified and competent. A breach of the regulation therefore gave rise to private rights and might be used as evidence of a breach of the common law duty of care owed by an employer to an employee.

Leask Timber & Hardware Pty. Ltd. v. Thorne (1961), 106 CLR 33, distinguished.

O'Connor v. S. P. Bray Ltd. (1937), 56 CLR 464; Australian Iron & Steel Pty. Ltd. v. Ryan (1957), 97 CLR 89, followed.

(2) In the circumstances the presumptive evidence was to the effect that the first respondent's breach of its statutory duty materially contributed to the injury suffered by the appellant.

McGhee v. National Coal Board, (1973) 1 WLR 1, referred to with approval.

(3) The inference that the appellant's injuries were caused by the incompetence or inexperience of the youth operating the nail gun was a more probable inference than any other.

Luxton v. Vines (1952), 85 CLR 352; Holloway v. McFeeters (1956), 94 CLR 470, referred to.

(4) It followed that the breach of reg. 118B (1) (b) was a probable cause of the appellant's injury for which the first respondent was liable.

HEARING

Sydney, 1980, March 31; April 1; December 17. #DATE 17:12:1980

APPEAL.

Appeal from judgment and orders of the Supreme Court of the Australian Capital Territory (Blackburn C.J.).

P. R. Capelin Q.C. and R. E. Williams, for the appellants.

M. L. Foster Q.C. and I. A. Curlewis, for the first respondent.

J. B. Norris and V. A. Hartstein, for the second respondent.

Cur. adv. vult.

Solicitors for the appellant: Minter Simpson & Co.

Solicitors for the first respondent: Davies Bailey & Cater.

Solicitors for the second respondent: Snedden Hall & Gallop.

D. LEVIN

ORDER

1. The appeal as against the first respondent be allowed.

2. The appeal as against the second respondent be dismissed.

3. There be judgment for the appellant against the first respondent for $118,982.35.

4. The costs of the appellant and the second respondent of the appeal and the trial be taxed and paid by the first respondent.

Orders accordingly.

JUDGE1

On 14 October 1971 the appellant, John Michael Canny, then aged 19 years, suffered serious injuries whilst carrying out certain building work on a building site in the Australian Capital Territory when he sustained a penetrating injury to his forehead as a result of being struck by a three inch nail discharged as a projectile from an explosive-powered tool known as a Ramset gun. The gun was fired by one Alhovirta, a 16 year old lad working on the site.

The first respondent, John Pfeiffer Pty. Limited, was a building contractor engaged in erecting the building and employed the appellant as an apprentice carpenter. The second respondent, Arro Jarvin, a sub-contractor of the first respondent, employed Alhovirta also as an apprentice carpenter.

The appellant brought an action against both respondents in the Supreme Court of the Australian Capital Territory for damages for personal injury. He alleged that each respondent was guilty of breaches of statutory duty and of negligence which caused his injuries. Blackburn C.J. found for the respondents on liability but assessed the appellant's damages provisionally at $118,982.35. The appellant appeals to this Court seeking judgment for the amount of the provisional damages.

Alhovirta was a full-time employee of the second respondent. The latter claimed that at the time the appellant was injured Alhovirta was temporarily the servant of the first respondent. The first respondent claimed that the appellant was, at the time of the accident, temporarily the servant of the second respondent. The learned trial judge found not only that the appellant was a permanent employee of the first respondent but also that in the circumstances the relationship of master and servant existed between them at the time of the appellant's injury so as to attract the ordinary master's duty to take reasonable care not to expose the appellant to unnessary risk. The learned trial judge also found that the services of Alhovirta, although he was a permanent employee of the second respondent, were at the time of the accident temporarily at the entire disposal and under the control of the first respondent. There was ample evidence on which the learned trial judge could have come to both findings; and in the case of Alhovirta he did so, having preferred the evidence of Alhovirta and the second respondent on the ground of reliability as against witnesses for the first respondent. We have not been persuaded by any submission put to the Court during the hearing of this appeal that there is any ground for disturbing either of these two findings of the learned trial judge.

Alhovirta made a written statement about the accident about a week after it occurred and it was tendered in evidence. The learned trial judge preferred this statement to the evidence of Alhovirta because it was an almost contemporary record. In this statement Alhovirta said that it was necessary to use a Ramset tool in order to fasten some hardwood blocks onto steelwork. Like the appellant he was also an apprentice carpenter and he had had very little experience with the tool, having been instructed by a carpenter in its use only the day before. He was working with the appellant and they were taking it in turns to use the tool. They were using three inch drive pins as supplied by the manufacturer together with a red charge which he knew from the label on the box in which they were contained was a strong charge. He loaded the tool with a three inch pin and a red charge, put the block of wood in position and then pushed down the shield on the tool flat onto the wood, as he had been taught to do, and pulled the trigger. After a shot had been fired he removed the tool and then put it down in order to get the next piece of wood ready. He then saw the appellant about fifteen feet away from him on the lower section of the roof with blood coming from his head. Before firing the tool he had, as he had been taught to do, called out to the appellant to move back behind him out of the direction in which the tool was pointing. He said he was not sure of what actually happened but that it appeared as if the drive pin, after striking the steel girder, had ricocheted and struck the appellant in the head. As he was frightened of what might happen to him he later went back to where the accident happened and noted that the hole left by the drive pin was at an angle and he put another drive pin into the same hole. The learned trial judge also appears to have accepted that portion of Alhovirta's sworn evidence in which he said that he saw the appellant in front of him and asked him if he could move behind him. The appellant then moved slightly to one side and said he could go ahead and fire.

The learned trial judge observed that the statement of Alhovirta left certain matters unclear. Had he been taught to require the appellant to move "behind" him, or only "out of the direction of the gun"? Had he been taught not to fire unless one of those requirements was met? Which, if either, requirement was a proper precaution i.e. one which would have been taught to him if he had been properly instructed? Did he use the word "ricocheted" in its proper sense, meaning that the pin struck some other object after leaving the steel into which it was fired and before striking the appellant?

On the evidence the learned trial judge was not prepared to say that Alhovirta held the gun in any particular direction and he noted that there was no evidence that the prolongation of the axis of the hole actually made by the pin passed anywhere near the place where the appellant was when he was hit, the only evidence as to the direction of the hole being that it was not perpendicular to the wood and steel. The learned trial judge, therefore, found himself unable to infer that Alhovirta was negligent in that, when firing the gun, he held it in a direction which was forseeably dangerous to the appellant. Consequently, His Honour said, it had not been shown that any negligence or breach of statutory duty on Alhovirta's part, in the manner of firing the gun, was the cause of the appellant's injury and therefore the first respondent could not be vicariously liable through Alhovirta.

The appellant alleged in his statement of claim that his injuries were caused by the failure of the first respondent to comply with the requirements of regulation 118B. (1) and 118E. (1) of the Scaffolding and Lifts Regulations of the State of New South Wales, as modified by the Scaffolding and Lifts Ordinance 1957 of the Australian Capital Territory. He also alleged in his claim based on the negligence of the first respondent that his injuries were due to the first respondent's failure to provide a safe system of work and that in the circumstances a safe system would have been to comply with the regulations.

The particular work which was being carried out at the time when the appellant sustained his injuries was clearly "building work" as defined by the Scaffolding Lifts Act of the State of New South Wales 1912, which Act applied to the Australian Capital Territory in accordance with the Scaffolding and Lifts Ordinance 1957.

The relevant regulations appear in Part IXA of the Scaffolding and Lifts Regulations of the State of New South Wales in their application in the Territory. Part IXA is headed "Safeguards And Measures To Be Taken For Securing The Safety And Health Of Persons In Connection With The Use Of Explosive Powered Tools In Building Work, Excavation Work And Compressed Air Work". This part contains eight regulations being regulations 118A. to 118H.

Regulation 118A. reads as follows:-
"118A. (1) This Part of these Regulations shall apply to and in respect of the use of explosive-powered tools in building work, excavation work and compressed air work.

(2) In this Part of these Regulations, unless the contrary intention appears -

'Explosive-powered tool' means a tool whereby a projectile may be driven against, into or through any substance by means of an explosive, and includes every attachment to and accessory of such tool and every device used or adapted or intended to be used therewith.

'Projectile' means stud, pin, dowel screw, rivet, spike or other object driven against, into or through any substance by means of an explosive-powered tool, or adapted or intended to be so driven.

'Qualified operator' means a person who -

(a) is over the age of eighteen years;

(b) has been thoroughly trained in the correct use, adjustment, assembly and taking apart of explosive powered tools;

(c) has been fully instructed as to the dangers associated with explosive-powered tools and the precautions to be taken in respect of them; and

(d) has a thorough knowledge of this Part of these Regulations.

'Tool' means explosive-powered tool.

'Work' means building work, excavation work or compressed air work.

(3) For the purposes of this Part of these Regulations, a person shall be deemed to use an explosive-powered tool if he loads, unloads or fires, or attempts to load, unload or fire, such tool."

Regulation 118B. reads as follows:-
"(1) Operators to be Qualified.- (a) No person who is not a qualified operator shall use a tool in any work.

(b) No person shall employ, instruct or allow any person to use a tool in any work without first ensuring by proper enquiry that such person is a qualified operator and is not by reason of any infirmity, disability or incapacity unfit to use such tool.

(2) Training of Operators. - Nothing in paragraph (1) of this Regulation shall apply to the use of any explosive-powered tool by a person who, under the immediate supervision and control of a qualified operator, is being trained to be a qualified operator."

Regulation 118E. reads as follows:-
"(1) General. - No person shall use in any work, or employ, instruct or allow any person to use in any work, any tool or other substance or thing contrary to this Regulation, or without the measures and precautions prescribed by this Regulation being taken.

(2) Limitation of Use. -

(a) Hard Substances. - No tool shall be used on high tensile steel, steel hardened by heat treatment, cast iron or other unusually hard or unyielding substance.

In this subparagraph 'high tensile steel' means steel the nominal ultimate tensile value of which exceeds 45 tons per square inch.

(b) Readily Shattered Substances. - No tool shall be used on hard tile, hard terra cotta, glazed brick, glass, marble, granite, thin slate or other readily shattered substance.

(c) Use Near Edges and Holes. - No tool shall be used to drive a projectile into any substance -

(i) at a point so close to an edge of the substance or to any hole therein that, by reason of the nature of the substance, the size and shape of the projectile or the strength of the charge to be used, there is any appreciable risk that the substance might crack or break or the projectile fly therefrom;

(ii) if the substance is steel, within half an inch of an edge thereof or, if the substance is brick, concrete or the like, within three inches of an edge thereof.

(d) Explosive or Dangerous Atmosphere. - No tool shall be used in the presence of an explosive or inflammable gas, dust or vapour, or in compressed air, or in any place where the explosive charge might be exploded or rendered dangerous by heat.

(3) Strength of Explosive Charges. - Every reasonable precaution, including where advisable the making of suitable tests, shall be taken to ensure that the explosive charge used in a tool -

(a) is of no greater strength than is necessary for the purpose for which the tool is being used;

(b) is not of such strength that the whole of the projectile might pass through the substance on which the tool is being used, unless such substance is backed by protective material capable of fully absorbing the energy of the projectile.

(4) Use of Barrel Extension. - Where the muzzle end of the barrel of a tool cannot be brought into contact with any surface at the point where the projectile driven from the tool is to strike or penetrate such surface, an effective barrel extension shall be used to extend the barrel into contact with the surface at that point. The length of the barrel extension shall not exceed by more than half an inch the maximum length that is required to clear the obstruction which renders the use of such barrel extension necessary.

(5) Care in Handling of Tools. - Every person while using a tool or carrying or handling a loaded tool shall at all times -

(a) keep all parts of his body clear of the open end of the barrel of the tool and keep such end pointed away from himself and all other persons;

(b) exercise the utmost care to avoid injury to himself and others.

(6) Firing of Tools. - No person shall fire a tool unless -

(a) he is in a safe, well-balanced position so that inadvertent tilting or misalignment of the tool at the time of firing will not occur;

(b) he is holding the tool perpendicular to the surface on which he is using the tool and so that the muzzle end of its barrel or barrel extension is in contact with that surface.

(7) Mechanical Failure. - If when any person attempts to use a tool on any surface the tool fails to fire, he shall continue to hold it perpendicular to and in contact with the surface for at least ten seconds, and if the tool has not then fired he shall unload it or place it in such a position that it will do no harm if it fires.

(8) Removing Foreign Matter. - A person using a tool shall, after each firing, carefully examine it and remove from it all pieces of projectile or cartridge and other foreign matter that may be present.

(9) Flying Projectiles. - No person shall intentionally fire a tool in such a manner as to cause the projectile to fly free.

(10) Use of Suitable Equipment. - There shall not be used in or with any tool any projectile, explosive charge, breech plug, barrel extension or adaptor which is not of a type correctly suited to the particular tool and to the purpose for which the tool is being used. No tool shall be used for a purpose for which it is not properly adapted.

(11) Manufacturer's Recommendations. - Where there appears on the container of any tool or in any printed matter supplied with any tool any instruction, advice or recommendation, not inconsistent with these Regulations, as to the safe use of the tool or the use therewith, for reasons of safety, of any substance or thing, such tool, substance or thing shall be used in accordance with such instruction, advice or recommendation: Provided that nothing in this paragraph shall require the use of any particular brand or make of any substance or thing."

It was established that Alhovirta was not a qualified operator within the meaning of the definition in regulation 118A.(2) not merely because he was under the age of 18 years but also because he had not been trained or instructed as required nor did he have any knowledge of Part IXA of the regulations. The learned trial judge said that it was clear that the first named respondent was thus in breach of regulation 118B.(1)(b).

His Honour took the view, however, that a breach of that regulation did not give rise to a civil action for the benefit of the appellant and that in any event there was no causal relationship between the defendant's breach of duty and the appellant's injury. His Honour relied upon Leask Timber and Hardward Proprietary Limited v. Thorne (1961) 106 C.L.R. 33. In that case the High Court held that a provision prohibiting the employment of a person to drive a power crane unless he held a certificate of competency did not create a private right of action in a person injured by the driving of a power crane by an uncertificated driver. The learned trial judge held that the principle established in Leask's Case was applicable to regulation 118B.(1)(b).

We think the two provisions are distinguishable. In the provision under consideration in Leask's Case the competence of the crane driver was to be assessed by an authority other than the employer. The provision was policed by prohibiting the employment of uncertificated crane drivers. Non constat that an uncertificated crane driver might not be a highly competent one.

On the other hand regulation 118B. places a direct responsibility upon the employer to ensure by proper enquiry that the user of the explosive powered tool is not only a qualified operator but is not by reason of any infirmity, disability or incapacity unfit to use such tool. We think that this provision plainly places upon the employer the responsibility for selecting a qualified and competent operator. The relevant regulations in our view clearly fall within the rule in Connor v. S.P. Bray Limited (1936-37) 56 C.L.R. 464 and The Australian Iron and Steel Pty. Ltd. v. Ryan (1956-57) 97 C.L.R. 89. Dixon J., at p.478 in Connor's Case, said:-
"In the absence of a contrary legislative intention, a duty imposed by statute to take measures for the safety of others seems to be regarded as involving a correlative private right, although the sanction is penal, because it protects an interest recognised by the general principles of the common law . . . Whatever wider rule may ultimately be deduced, I think it may be said that a provision prescribing a specific precaution for the safety of others in a matter where the person upon whom the duty laid is, under the general law of negligence, bound to exercise due care, the duty will give rise to a correlative private right, unless from the nature of the provision or from the scope of the legislation of which it forms a part a contrary intention appears. The effect of such a provision is to define specifically what must be done in furtherance of the general duty to protect the safety of those affected by the operations carried on."
Accordingly in our view, where an employer carrying out building work (as defined) employs a person to operate an explosivepowered tool without first ensuring by proper and adequate inquiry that that person is a "qualified operator" within the meaning of the said regulations and a fellow employee of that person is injured by a projectile fired from such tool by that person, then the injured employee is entitled to rely upon his employer's breach of regulation 118B.(1)(b) as giving rise to a civil action for his benefit. In the present case the appellant was entitled to claim such breach gave rise to a private right and to rely upon it as evidence of a breach of the common law duty owed to him by the first respondent.

We turn to the question whether the breach of such statutory duty was a cause of the injury sustained by the appellant The first respondent was carrying out the particular building work and was found by the trial judge to be the employer of both the appellant and Alhovirta at the relevant time. Consequently we think we should approach the question of causation on the following basis. The first respondent was obliged to adopt and maintain a safe system of work for carrying out the particular job in which the appellant and Alhovirta were engaged. Furthermore the first respondent, having decided that the timber was to be fixed by means of a Ramset gun, was under an obligation not only to employ a qualified operator for its "use", as defined by regulation 118A.(3), but also to ensure that such operator was competent and had a thorough knowledge of the safety precautions to be observed. By definition such qualified operator would have been "over the age of 18 years", "thoroughly trained in the correct use" of the tool, "fully instructed as to the dangers associated with explosive tools and the precautions to be taken in respect of them" and would have a "thorough knowledge" of Part IXA of the regulations including the provisions of regulation 118E.(3) and (5).

A person having a thorough knowledge of regulation 118E.(3) would have been aware that the explosive powered charges used in such tools varied in strength and that it was important to ensure that a charge was not of greater strength than was necessary for the purpose for which the tool was being used; or that, if it was, there should be a protective backing capable of fully absorbing the energy of the projectile.

A person having a thorough knowledge of regulation 118E.(5) would have been fully aware of the importance while using such a tool of keeping it pointed away from all other persons and exercising the "utmost care to avoid injury to others".

There was uncontradicted and unchallenged evidence of the second respondent, whom the learned trial judge described as a generally reliable witness, that when he examined the scene on the day following the appellant's injury he found that a number of nails which had been fired by the Ramset gun had protruded beyond the outer edge of the rolled steel joists.

The learned trial judge was plainly placed in a difficult predicament by reason of the lack of evidence on many aspects of this matter. Even so we think that there was sufficient evidence that the action of the first respondent in permitting Alhovirta to use the Ramset gun was a probable cause of the appellant's injury. We think it unlikely that a qualified operator, aware of his obligation to take the utmost care for the safety of the appellant, seeing the appellant in front of him and asking him to move behind him, would have proceeded to fire the gun after the appellant had moved only slightly to one side. We think it unlikely, if a qualified operator had been using the tool, that the nail would have gone through the wood and steel as it did. By permitting an inexperienced unqualified apprentice to use the gun, instead of a qualified operator, the first respondent in our view greatly increased the risk of the appellant receiving injury from a projectile from the Ramset gun; and the appellant suffered just such an injury. As Lord Reid said in McGhee v. National Coal Board (1973) 1 W.L.R. 1 at p.5:-
". . . it has often been said that the legal concept of causation is not based on logic or philosophy. It is based on the practical way in which the ordinary man's mind works in the everyday affairs of life." We think in the circumstances there was presumptive evidence that the first respondent's breach of statutory duty materially contributed to the injury.

On behalf of the first respondent Mr. Foster submitted that the evidence had not excluded the following possibilities which were consistent with there being no causal connection in the legal sense between the firing of the gun and the appellant's injuries:-
(a) a latent weakness in the rolled steel joist;

(b) defective timber;

(c) a latent defect in the nail;

(d) fault on the part of the manufacturer in relation to the individual charge; and
(e) a malfunction of the gun.
It may be that in a criminal trial it could have been said that these were hypotheses consistent with innocence which had not been excluded. We think, however, that the inference that the appellant's injuries were caused by the incompetence or inexperience of Alhovirta is a more probable inference than any of those suggested by Mr. Foster; cf. Luxton v. Vines (1952) 85 C.L.R. 352 per Dixon, Fullagar and Kitto JJ. at p.358 and Holloway v. McFeeters (1956) 94 C.L.R. 470 per Williams, Webb and Taylor JJ. at pp.480-481.

We are of opinion, therefore, that the breach by the first respondent of regulation 118B.(1)(b) was a probable cause of the appellant's injury.

If we are wrong in holding that a breach of regulation 118.(i)(b) gives rise to civil liability we think it plain that it was open to the appellant to plead its breach as a particular of negligence. We think that a failure to comply with the regulations was a particular of negligence which was a cause of the appellant's injuries.

For these reasons we would allow the appeal and award the appellant $118,982.35 damages. The costs of the appellant and of the second respondent, both of the appeal and of the trial, are to be taxed and paid by the first respondent.