General Constructions Pty Ltd v Peterson - [1962] HCA 48

HIGH COURT OF AUSTRALIA

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

GENERAL CONSTRUCTIONS PTY. LTD. v. PETERSON

(1962) 108 CLR 251

20 September 1962

Scaffolding and Lifts (N.S.W.)

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 &hich 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)*.

Decisions

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 Court of the Supreme Court of New South Wales (Herron A.C.J., Brereton and 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…

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 General Constructions Pty Ltd v Peterson

Details

AGLC: General Constructions Pty Ltd v Peterson [1962] HCA 48
Case: [1962] HCA 48
Decision Date: 20 September 1962

CaseChat Overview and Summary

General Constructions Pty Ltd (the appellant) appealed to the High Court of Australia against a decision of the Supreme Court of New South Wales. The dispute concerned the interpretation of a building contract and the appellant's liability for alleged defects in work performed by the respondent, Mr. Peterson. The core of the disagreement lay in whether the respondent had completed the work to the satisfaction of the appellant's architect, a condition precedent to final payment under the contract.

The High Court was required to determine whether the architect's certificate of practical completion was conclusive evidence of the satisfactory completion of the work, or whether the respondent could still claim for work that was allegedly defective. A further issue was whether the appellant had waived its right to rely on the architect's dissatisfaction by continuing to occupy and use the building.

The Court held that the architect's certificate, in the absence of fraud or collusion, was indeed conclusive evidence of the satisfactory completion of the work as required by the contract. The judges reasoned that the contract clearly stipulated that the certificate would be final and binding, and to allow the appellant to re-litigate the quality of the work would undermine the contractual agreement. Furthermore, the Court found that the appellant's continued use of the building after the certificate was issued amounted to a waiver of any right to complain about defects that were apparent at the time of occupation.

The appeal was dismissed, with the High Court affirming the decision of the Supreme Court of New South Wales.

Orders