While working on the ground floor of a building which was in the course of erection the plaintiff's husband was killed by a bag of plaster falling on him from a skip which had been raised to a considerable height above him by men employed by the defendant. In an action under Part III. of the Wrongs Act 1928 (Vict.) (Lord Campbell's Act) the plaintiff proved the accident and the resulting injury. The defendant gave evidence that the precautions taken in securing the skip were those in general use and regarded by experts as sufficient, but nevertheless, for some reason which could not be explained, the skip tilted and the fall of the bag resulted. In his opening address to the jury plaintiff's counsel said that the action was the plaintiff's only opportunity of obtaining redress for the death of her husband. The defendant's counsel in his final address said that a verdict for the defendant would not deprive the plaintiff of her rights under the Workers' Compensation Act. The plaintiff's counsel did not ask the Judge to discharge the jury because of this remark, but the Judge told the jury they had nothing to do with workers' compensation. The jury returned a verdict for the defendant.

Held, by Latham C.J., Starke and Dixon JJ. (Rich and McTiernan JJ. dissent- ing), that the verdict should stand. On the evidence the jury were entitled

54 CLR 201

to bring in the verdict which they returned, and the trial Judge had adequately H. ('. OF A. dealt with the remark of the defendant's counsel as to workers' compensation.

The principle of res ipsa loquitur considered. Decision of the Supreme Court of Victoria (Full Court) affirmed.

APPEAL from the Supreme Court of Victoria.

The appellant, Frances Mary Fitzpatrick, brought an action in the Supreme Court of Victoria against the respondents, Walter E. Cooper Pty. Ltd. and William Lamping, claiming £3,000 damages under the Wrongs Act 1928 (Vict.), Part III. (Lord Campbell's Act), for the negligence of the defendant company and the individual defendant causing injuries to the plaintiff's husband, on 5th November 1934, from which he died on 9th November 1934. The action was brought by the widow on behalf of herself and the two children of herself and the deceased, Frances Fitzpatrick and Terence Fitzpatrick. The defendants denied negligence, and pleaded contributory negli- gence on the part of the deceased and that the deceased voluntarily accepted and undertook the risk.

On 5th November 1934 the deceased was employed working on the ground floor of a building which was in the course of erection in Melbourne. While he was SO employed a skip containing fibro-plaster sheets and two bags of plaster each weighing about 120 pounds…

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.

Continue reading Fitzpatrick v Walter E Cooper Pty Ltd

Details

AGLC: Fitzpatrick v Walter E Cooper Pty Ltd [1935] HCA 82
Case: [1935] HCA 82
Decision Date: 19 December 1935

CaseChat Overview and Summary

The appellant, Mrs Fitzpatrick, brought an action in the Supreme Court of Victoria against the respondents, Walter E. Cooper Pty Ltd and William Lamping, seeking damages for the death of her husband. The deceased was killed when a bag of plaster fell from a skip being hoisted by men employed by the defendant company. The plaintiff alleged negligence on the part of the defendants. The defendants denied negligence and raised defences of contributory negligence and voluntary assumption of risk. The jury returned a verdict for the defendants, and the Full Court of Victoria dismissed the plaintiff's appeal. The plaintiff then appealed to the High Court of Australia.

The legal issues before the High Court were whether the jury's verdict was unreasonable on the evidence presented, particularly in light of the principle of *res ipsa loquitur*, and whether the trial had been vitiated by a remark made by the defendant's counsel during his address to the jury concerning the plaintiff's rights under the Workers' Compensation Act. The plaintiff argued that the accident was of a kind that would not ordinarily occur without negligence, and that the defendant had failed to provide a sufficient explanation to rebut the inference of negligence. Furthermore, the plaintiff contended that the reference to workers' compensation had improperly influenced the jury.

A majority of the High Court (Latham C.J., Starke and Dixon JJ.) held that the verdict should stand. The Court reasoned that while the principle of *res ipsa loquitur* applied, the jury was entitled to accept the defendant's evidence that all reasonable precautions had been taken, even though the precise cause of the accident remained unexplained. The Court found that it was open to the jury to believe the defendant's testimony regarding the care taken in securing the skip and its contents, and to reject the defendant's assertion that the accident was therefore impossible. Regarding the remark about workers' compensation, the majority found that the trial judge had adequately dealt with the matter by directing the jury to disregard it, and that the plaintiff's counsel had not sought further intervention, such as discharging the jury. Therefore, the trial was not considered to have miscarried.

The appeal was dismissed, with the majority of the High Court affirming the decision of the Supreme Court of Victoria. Rich and McTiernan JJ. dissented, with Rich J. finding the verdict unreasonable and suggesting a new trial should be ordered.

Orders