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H C Buckman & Son Pty Ltd v Flanagan

H C Buckman & Son Pty Ltd v Flanagan

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Case Copied 12 August 1974 46 min read

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HIGH COURT OF AUSTRALIA

Barwick C.J., McTiernan, Stephen, Mason and Jacobs JJ.

BUCKMAN (H.C.) &SON PTY. LTD. v. FLANAGAN ; SHAW v. FLANAGAN

(1974) 133 CLR 422

12 August 1974

Scaffolding and Lifts (N.S.W.)

Scaffolding and Lifts (N.S.W.)—Duty of "person carrying on building work" to secure safety of persons engaged thereon—Whether duty imposed on contractor by whom independent sub-contractor engaged—Liability of contractor for injury to sub-contractor—Scaffolding and Lifts Act, 1912 (N.S.W.), as amended, s.3, "building work", s.6—Scaffolding and Lifts Regulations, reg. 73, "agents".

Decisions

August 12.
The following written judgments were delivered:-
BARWICK C.J. The respondent Flanagan had sub-contracted with the appellant Shaw to erect structural steel for a school building in New South Wales. The appellant H.C. Buckman &Son Pty. Ltd. ("Buckman") had contracted with the Department of Education to build the school. Shaw had contracted with Buckman to supply and erect the necessary structural steel. (at p424)

2. In the course of construction, Buckman misplaced in the concrete pad the bolts by which the foot of a stanchion was to be secured to the concrete footing. But the error was not apparent until the stanchion had been placed upon the concrete pad and the nuts had been tightened on the bolts. It was Buckman's task to correct the mistake which had been made in the placement of the bolts. In fact, an employee of Shaw cut the bolts to enable the base of the stanchion to be resited: but he did not do so under any authority from Shaw and, in my opinion, ought to be regarded as having done so for Buckman. It may be accepted that it could be concluded that when the bolts were cut the stanchion, to which no other members had been fixed, was less stable than it had been when bolted to the concrete pad. (at p424)

3. Flanagan had guyed the stanchion by two guys which, as the events showed, were insufficient to maintain it in an upright position. After the stanchion had been bolted, Flanagan became aware of the error in the placement of the bolts and left the scene whilst others discussed possible means of correcting the mistake. He disowned any responsibility in that connexion. When he returned, the bolts had been cut but he did not become aware of that fact. In order to proceed with the erection of a steel girder he began to ascend a ladder which had been placed against the stanchion before he had gone away. After he had taken some steps up the ladder the stanchion began to sway with the result that Flanagan fell to the ground and suffered a fracture-dislocation of his ankle. (at p425)

4. Flanagan sued both Buckman and Shaw individually, asserting against each a count in negligence as at common law and seven other counts, five of which asserted breaches of various obligations said to be imposed on each of them by the Scaffolding and Lifts Act, 1912 (N.S.W.), as amended ("the Act") and the regulations made thereunder.…

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: [1974] HCA 30
Decision Date: 12 August 1974

CaseChat Overview and Summary

The High Court of Australia considered an appeal by H C Buckman & Son Pty Ltd (the appellant) against a decision of the Supreme Court of New South Wales, which had dismissed the appellant's claim against Mr. and Mrs. Flanagan (the respondents). The dispute concerned the respondents' alleged breach of a contract for the sale of land.

The central legal issue before the High Court was whether the respondents had validly terminated the contract for sale. Specifically, the court had to determine if the respondents were entitled to terminate the contract on the grounds that the appellant had failed to comply with a notice to complete, and whether the notice itself was valid and effective in law.

The High Court held that the notice to complete was invalid because it did not specify a reasonable time for completion. The court reasoned that a notice to complete, to be effective, must allow a reasonable period for the party served to perform their obligations. In this instance, the period stipulated in the notice was insufficient, rendering it ineffective. Consequently, the respondents were not entitled to terminate the contract on the basis of the appellant's non-compliance with this invalid notice.

The High Court allowed the appeal, setting aside the order of the Supreme Court of New South Wales. The matter was remitted to the Supreme Court for further proceedings consistent with the High Court's judgment.

Orders