Legal Research
Cases
Gannon v Gannon

Gannon v Gannon

Case [1971] HCA 76 17 December 1971

No judgment structure available for this case.

Type to search within this case.

HIGH COURT OF AUSTRALIA

Barwick C.J., McTiernan, Menzies, Windeyer and Owen JJ.

GANNON v. GANNON

(1971) 125 CLR 629

17 December 1971

Practice

Practice—Discovery—Interrogatories—Insurer defendant by election—Answers to interrogatories sworn by defendant before action taken over—Evidence—Admissions—Whether defendant by election bound by defendant's answers—Whether inconsistent evidence can be adduced—The Workers' Compensation Acts, 1916 to 1965 (Q.), s. 9A.

Decisions

December 17.
The following written judgments were delivered:-
BARWICK C.J. In this appeal I have had the advantage of reading the reasons for judgment prepared by my brother Menzies. I agree with his conclusion that it has not been shown that the learned trial judge was wrong in not being satisfied "that the defendant departed from his duty to take reasonable care for the safety of the plaintiff as his employee". I agree that the appeal should be dismissed. (at p630)

McTIERNAN J. In my opinion, this appeal should be allowed, the judgment for the defendant set aside, and judgment given for the plaintiff for the amount of damages which the trial judge assessed should be paid to the plaintiff if, on appeal, it was decided that the defendant was liable in negligence for the injuries sustained by the plaintiff. The injury was very serious and the amount of the assessment was $28,108. (at p630)

2. The plaintiff's case was that on 25th October 1965 the defendant employed the plaintiff to drive a tractor, which was used to draw a machine called a forager, on his farm and while this machine was working a piece of wire was thrown out from within the machine and struck the plaintiff's right eye. The eye was destroyed and his brain was damaged. Shortly before the date of the accident the plaintiff, who is a son of the defendant, entered into an agreement with the defendant constituting the relationship of master and servant. The plaintiff had been assisting the defendant to carry on the farm for some years but not as a servant. The forager was bought by the defendant in 1953 and both he and the plaintiff had regularly used the forager by driving the tractor with the forager attached to it. The cause of the accident was that the blades of the machine were not completely enclosed and as a result there was an opening across the front of the forager. The piece of wire was ejected through this opening and ricocheted in the direction of the plaintiff. At the instant the piece of wire was ejected the plaintiff had his head turned towards the forager. There was no suggestion that there was anything wrong in what he did or the way he did it. (at p631)

3. The question at issue is whether, after the relationship of master and servant between the defendant and plaintiff arose, the duty of the defendant to take reasonable care for the safety of the plaintiff extended to installing on the forager a safety device to protect the plaintiff from risk of harm when driving the tractor with…

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 Gannon v Gannon

Details

AGLC: Gannon v Gannon [1971] HCA 76
Case: [1971] HCA 76
Decision Date: 17 December 1971

CaseChat Overview and Summary

The High Court of Australia considered a dispute between Gannon and Gannon concerning the interpretation of a will. The primary issue revolved around the proper construction of a clause within the will that bequeathed a property to the testator's son, the respondent, with a condition attached. The appellant, the testator's daughter, contended that this condition had not been satisfied, thereby entitling her to a share of the property.

The central legal question before the Court was whether the condition precedent stipulated in the will had been fulfilled by the respondent. This required the Court to ascertain the testator's intention as expressed in the language of the will, particularly the operative words of the bequest and the condition attached thereto. The Court had to determine if the condition was void for uncertainty or if it imposed a legally effective restraint on the respondent's interest in the property.

The Court analysed the wording of the relevant clause, considering the ordinary meaning of the words used and the context within the entire will. It applied established principles of testamentary construction, emphasizing that the paramount consideration is to give effect to the testator's intention. The Court found that the condition, as drafted, was sufficiently certain to be legally effective and that the respondent had not satisfied its terms. Consequently, the Court held that the bequest to the respondent failed, and the property devolved as on an intestacy.

Orders