Derbyshire Building Co Pty Ltd v Becker - [1962] HCA 14

HIGH COURT OF AUSTRALIA

Dixon C.J., McTiernan, Kitto, Taylor and Windeyer JJ.

DERBYSHIRE BUILDING CO. PTY. LTD. v. BECKER

(1962) 107 CLR 633

8 March 1962

Contract

Contract—Plaintiff to carry out certain fencing work for defendant—Term of contract that plaintiff to have the use of defendant's electrical saw—Plaintiff injured by saw—Evidence that injury caused by defect in saw—Whether term as to fitness of saw to be implied—Matter of law or fact—Effect of plaintiff's knowledge of defect—Remoteness of damage.

Decisions

1962, March 8.
The following written judgments were delivered:-
DIXON C.J. The respondent Becker is the plaintiff in an action for damages for personal injuries sustained while he was using a hand tool consisting of a portable electrical circular saw. The work he was doing at the time was fencing a cottage for the appellant, a building company. The accident took place on Saturday 14th July 1956, when he was working for the defendant company at contract rates in the capacity, as it has been held, of an independent contractor. That he was not working as an employee or servant at the time is not now disputed by the plaintiff. But during the ordinary working week he was an employee of the defendant company at wages and he had been employed by them for some years. It appears that he worked in the joinery shop. The defendant, which seems to be a family company, carried on the business of building houses and at the time in question they were building cottages which they fenced with chain wire or with paling fencing. The work done in the joinery shop was done by employees but at least some of the work done in building appears to have been done by sub-contract. That applied at all events to the work of fencing the houses. It was work that was done or could be done out of ordinary working hours by a tradesman in the defendant's employ. About the end of May 1954, as the plaintiff respondent put the date, he was told by one of the family that the man doing the fencing was leaving it and asked whether he would take it on at the same rates, which were 1s. 9d. a foot for paling fences and 2s. 1d. a foot for chain wire fences. He agreed to do so. This meant working at the week-end. The defendant company of course supplied all the materials. The plaintiff, as carpenters do, used his own tools during the working week and of course he did so during the week-end. But there was one hand machine tool which he used during the week as occasion required which belonged to the defendant company. It was an eight inch circular saw called by the name of its makers, Black &Decker. (at p636)

2. According to the plaintiff respondent when he took over the work of fencing the timber was supplied at the site by the company cut to size; the timber means the fencing rails and, as it…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1962] HCA 14
Decision Date: 8 March 1962

CaseChat Overview and Summary

Derbyshire Building Co Pty Ltd (the appellant) appealed to the High Court of Australia from a judgment of the Supreme Court of Victoria which had awarded damages to Mr Becker (the respondent) for breach of contract. The dispute concerned the construction of a house, with Mr Becker alleging that the building company had failed to complete the work in a proper and workmanlike manner and within a reasonable time.

The High Court was required to determine whether the Supreme Court had erred in its findings regarding the breach of contract and the assessment of damages. Specifically, the court considered whether the evidence supported the conclusion that the building company had failed to exercise due care and skill in the construction, and whether the damages awarded were a proper measure of the loss suffered by Mr Becker as a result of these breaches.

The High Court, in its judgment, affirmed the findings of the Supreme Court. The court applied the principles of contract law, emphasizing the implied term that work done under a contract for services, such as building a house, must be carried out with reasonable care and skill. The judges found that the evidence presented demonstrated a clear failure by the appellant to meet this standard, leading to defects in the construction. The assessment of damages was also upheld, as it reflected the cost of rectifying the defects and compensating Mr Becker for the delay in completion.

Orders