H C Buckman & Son Pty Ltd v Flanagan

[1974] HCA 30

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. The actions came for trial before a judge and jury in the Supreme Court of New South Wales. The trial judge allowed only the counts in common law negligence to go to the jury who returned a verdict for Flanagan for $5,000 against Buckman but a verdict in favour of Shaw. An apportionment of responsibility was made by the jury assigning eighty per cent thereof to Flanagan. (at p425)

5. On appeal by Flanagan to the Court of Appeal Division, the verdict was set aside and a new trial ordered upon, oddly enough, the counts in common law negligence, and as well, upon five of the counts against each of the appellants based on alleged breaches of the Act and the regulations thereunder. The grounds of this order for a new trial were, first, that the amount of damages awarded was inadequate and, second, that the five counts should not have been withdrawn from the jury. The apportionment of responsibility was not disturbed on appeal. (at p425)

6. In my opinion, the first matter for decision in these appeals by both Buckman and Shaw is whether either or both of them were obliged under the Act and regulations to take in relation to the erection of the stanchion the precautions or any of them prescribed by reg. 73 of those regulations. The regulations, so far as it is suggested to be relevant to this matter, is in these terms:

"73. 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 minimise 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 - (1) provide suitable and safe scaffolding, which shall conform to the requirements of these Regulations, for all work which cannot be done safely by a person standing on permanent or solid construction, except when such work can be done safely from ladders constructed in conformity with the provisions of these Regulations; (2) provide and maintain safe means of access to every place at which any person has to work at any time; (3) 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; ... (16) take all practicable precautions by the use of adequate temporary guys, stays, supports and fixings or otherwise to prevent danger to any person through the collapse of any part of a building or structure during any temporary state of weakness or instability of the building or structure or part before the building or structure is completed; (17) where any building work is carried on which is likely to reduce, so as to endanger any person, the security or stability of any part of an existing building or structure or of a building or structure in course of construction, take all practicable precautions by shoring or otherwise to prevent danger to any person from the collapse of the building or structure or the fall of any part thereof; ..." (at p426)

7. "Building work" is defined by the Act (s.3), subject to context, as follows:

" 'Building work' means - (a) work in constructing, erecting, adding to, altering, repairing, equipping, finishing, painting, cleaning, signwriting or demolishing which when done in relation to a building or structure is done at or adjacent to the site thereof, and which when done in relation to a ship is done on or adjacent to a ship in dock or on slips; and (b) work in laying or lining any pipe having an internal diameter exceeding twenty-three inches, and work in lining any shaft, well or tunnel." (at p426)

8. No doubt the erection of the structural steel, including this particular stanchion, was building work within this definition. As such, it was being "carried out" by Flanagan. He, by virtue of s. 6 of the Act, had, in my opinion, come under the obligation of that section to serve the requisite notice on the Chief Inspector. In this respect, I am in agreement with my brother Mason and for the reasons which he will express. (at p426)

9. But did either Buckman or Shaw come under any of the obligations sought to be imposed by reg. 73? The answer to that question turns exclusively upon the proper interpretation of the language of the opening sentence of the regulation. It could not be said that either Buckman or Shaw was carrying out the erection of the structural steel, either by itself or himself, or by servants. But was either of them carrying out the building work of erecting the structural steel by an agent? In other words, was Flanagan, sub-contracting under the sub-contract of Shaw from Buckman, an agent of Buckman to carry out the erection of the structural steel? Or was he an agent of Shaw in that respect? There can be no doubt, in my opinion, that, according to the general law, Flanagan was not such an agent. But is there any special meaning to be attributed to the word "agents" in the regulation? (at p427)

10. The stated purpose of the regulation is the protection of the safety and health of persons engaged in the particular building work which is being carried on by the persons on whom the various obligations are cast: it is persons engaged in "such" building work who are to be protected by the necessary safety measures. Just as s. 6 casts the obligation of giving notice on the person carrying out any building work, so these obligations are, in my opinion, placed on the person carrying out the work, whether he does so himself or by his servants or by his agents. In the latter instance, what he does by another he does himself. I would regard s. 6 and reg. 73 as complementary at least in the sense that they are each directed to the same persons. (at p427)

11. The policy of the Act will be found in its express provisions. It is not proper, in my opinion, to suppose some policy and then to construe the language used by the Act in order to effect that policy. Of course, if the language of an Act as a whole discloses the purposes the Act is intended to effect, particular expressions can take their meaning to conform to that policy. In the case of this Act it is only in the actual provisions it makes that any policy is to be found. The heading to the relevant part of the regulations adds nothing and is merely descriptive of the regulations themselves. For my part, I perceive that the Act and regulations purpose to place particular responsibilities upon the person actually carrying out the particular building work, that is to say, doing it himself personally, or by his servants or by those whose acts are in law his acts. This seems to me an eminently practical and workable scheme of legislation. By imposing obligations on such persons in respect of the several sections of the total building enterprise the safety of all will be secured. I am unable to accept the view that the word "agents" comprises the independent contractors who are themselves carrying out the building work which they have contracted to do. (at p428)

12. However, it is necessary for me to refer to the case of Davey v. Skinner (1961) SR (NSW) 648 , where it would seem that it was decided that both the builder and independent contractors are bound by the various obligations sought to be imposed by reg. 73. Some weight was placed by the majority of their Honours in this case upon certain dicta by Williams J. in Australian Iron and Steel Ltd. v. Ryan (1957) 97 CLR 89 . That case decided that reg. 73 was validly made under a regulation-making power in the Act (s. 22) and that, though only a regulation, persons who were injured by reason of breaches of it had rights of action against the persons who were relevantly bound by the regulation. The appellant in that case was itself carrying out the building work and the respondent was its employee in connexion with that work. No argument was addressed to the question of the meaning of the word "agents" in the regulation. With due respect, I am unable to accept the view that "unlike reg. 31 of the Navigation (Loading and Unloading) Regulations they" (the precautions to be taken) "are imposed on the employer personally and he is therefore under a duty to see that they are observed not only by himself but also by his servants and agents and even by independent contractors" (Davey v. Skinner (1961) SR (NSW), at p 651 ). Regulation 73 imposes the obligation, not with respect to employment and so not on an employer as such, but with respect to building work which is being carried on or carried out. I agree with the majority in Davey v. Skinner (1961) SR (NSW), at p 652 when their Honours said: "Regulation 73 does not impose its obligations on an employer as such nor does it limit its safety measures to employees as such. Nor does it, for example, refer to a contractor as the person obliged to conform to its provisions. In broad terms it directs its provisions to any person who carries out any building work ... The obligation rests on the active person, that is the one who carries out the work in actual fact." I agree with the majority, and am unable to accept the contrary view of the minority judgment in that case that reg. 73 is directed to the principal contractor or building owner. Building work is so defined that it does not necessarily refer to the total work to be performed in a building, but the definition is suitably worded to enable each section of work being done, e.g. as "painting, cleaning and signwriting", being regarded as building work so that the obligation to take the specific safety measures are imposed on that person who is carrying on or carrying out that particular work. (at p429)

13. It is not consistent, in my opinion, with that conclusion to include independent contractors who are carrying out particular building work as "agents" of the building owner or contractor so as to impose on him the obligation which clearly will fall upon the independent contractors vis-a-vis the building work they are actually doing. Consequently, I am unable to accept the view expressed by the majority in Davey v. Skinner (1961) SR (NSW), at p 653 when they said: "In some circumstances such an expression" (servants or agents) "could extend to independent contractors, as Williams J. held in Ryan's Case (1957) 97 CLR, at p 96 ." But I do agree that: "The use of the familiar phrase 'servants or agents', from the subject matter of the Regulations, is intended to embrace those employed under a contract for services, that is, not merely servants properly so called, but also the agents, whom, though not strictly servants, the person carrying out building work employs to do for him what he has engaged to do", that is to say, persons whose acts are in law the acts of a principal. But this description does not include independent contractors. (at p429)

14. In that case, the respondent defendant clearly was a person carrying out building work, i.e. the laying of the brickwork, and was bound to attend to the scaffolding. It was nothing to the point that the building owner had taken on itself the provision of scaffolding. But, in my opinion, the building owner was not relevantly a person carrying out the bricklaying by himself or by servants or agents. That was the work of an independent contractor. (at p429)

15. I therefore conclude that Flanagan was the person carrying on the relevant building work, namely, the erection of the steel work, and in particular, the erection of the stanchion from which he fell. The requirements of pars 1, 2, 3 and 16 of the regulation fell upon him and not upon Buckman or Shaw. In particular, it was his obligation to secure the stanchion during erection. (at p429)

16. However, Buckman did undertake building work in connexion with this stanchion, i.e. it set about resiting it to enable bolts to be inserted into the concrete pad at appropriate places. By cutting the bolts which could be held to have been contributing to the stability of the stanchion, it could be concluded that building work was carried out by Buckman which was likely to reduce the stability of the stanchion so as to endanger some person. Consequently, Buckman could be held to have come under an obligation to take some precautions to prevent danger to any person from the collapse or fall of the stanchion. The only practicable steps were: (a) a warning that the foot of the stanchion was no longer bolted, and (b) the guying of the stanchion to maintain its vertical stability. But the obligation to so guy the stanchion already rested on Flanagan. I agree with what my brother Mason has written as to the effect of the circumstance that the same obligation rested on Flanagan as that which he claims Buckman to have failed to perform. But the matter is otherwise in respect of the giving of a warning that the bolts had otherwise in respect of the giving of a warning that the bolts had been cut. Flanagan was injured because he ascended the ladder in ignorance of the changed situation of the bolts at the base of the stanchion. It may be that, none the less, had the stanchion been properly guyed it would not have moved sufficiently to dislodge Flanagan from the ladder. But Buckman, if in breach of the regulation, could not avail itself of that circumstance. In my opinion, a count founded on par. 17 of reg. 73, the alleged breach being confined to a failure to warn Flanagan of the cutting of the bolts at the base of the stanchion, should now be submitted to a jury. (at p430)

17. As indicated, I have had the advantage of reading the reasons for judgment prepared by my brother Mason. I am content to agree with his conclusion that the Court of Appeal Division's order for a new trial on the issue of damages should not be disturbed. (at p430)

18. In my opinion, the order of the Supreme Court as to the appeal of Buckman should be varied by limiting the trial of the statutory counts to that founded on par. 17 of reg. 73 and in that respect to the question whether Buckman was guilty of a breach of that paragraph by failing to warn Flanagan of a situation of which he was unaware, if that be the fact. The order of the Supreme Court in Shaw's appeal should be set aside and Shaw's appeal to the Supreme Court allowed. (at p430)

McTIERNAN J. The appellant H.C. Buckman &Son Pty. Ltd. (Buckman) had contracted with the Department of Education to build a school in Tumbarumba. The appellant Shaw had contracted with Buckman to supply and erect certain steel structures which were essential parts of the construction of the school. The plaintiff respondent, Flanagan, was a rigger and had in turn contracted with Shaw to erect the steelwork on the site. During the course of construction of the school building the respondent was injured when a stanchion, against which was the ladder supporting him, swayed, and he fell to the ground. (at p431)

2. By his declaration he sued each defendant on a number of counts which included, as regards each defendant, a common law negligence count and counts under five paragraphs of reg. 73 under the Scaffolding and Lifts Act, 1912 (N.S.W.), as amended. Each defendant pleaded the general issue with regard to each count and pleaded contributory negligence on the part of the plaintiff. (at p431)

3. The learned trial judge directed the jury to find verdicts for the defendants on each of the statutory counts and left only the common law negligence counts to the jury. The jury found for the plaintiff as against the first defendant (Buckman) but found in favour of the second defendant (Shaw). Damages of $5,000 were awarded to the plaintiff but were reduced by eighty per cent for contributory negligence. (at p431)

4. The plaintiff appealed to the Court of Appeal against the judgment in favour of the second defendant, Shaw, and against the verdict by direction on all the statutory counts, the finding of eighty per cent contributory negligence and the amount of the verdict. (at p431)

5. By a majority, the Court of Appeal ordered a new trial on all the statutory counts, as well as the common law negligence counts. The majority (Moffitt J.A. and Hutley A.J.A.) also set aside the verdict of the jury. Hardie J.A. allowed the appeal as against the first defendant (Buckman) and ordered a new trial, and dismissed the appeal in so far as it sought to set aside the verdict directed for the second defendant (Shaw) on the statutory counts and the jury's verdict for Shaw on the common law negligence count. Each of the defendants has appealed to this Court against the orders for a new trial. (at p431)

6. The main question which falls here for decision is that concerning the liability of the appellants under the statutory counts. Any liability to the respondent would arise from the imposition of certain statutory duties by reg. 73. The relevant parts of reg. 73 are as follows:

"73. 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 minimise 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 - (1) provide suitable and safe scaffolding, which shall conform to the requirements of these Regulations, for all work which cannot be done safely by a person standing on permanent or solid construction, except when such work can be done safely from ladders constructed in conformity with the provisions of these Regulations; (2) provide and maintain safe means of access to every place at which any person has to work at any time; (3) 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; ... (16) take all practicable precautions by the use of adequate temporary guys, stays, supports and fixings or otherwise to prevent danger to any person through the collapse of any part of a building or structure during any temporary state of weakness or instability of the building or structure or part before the building or structure is completed; (17) where any building work is carried on which is likely to reduce, so as to endanger any person, the security or stability of any part of an existing building or structure or of a building or structure in course of construction, take all practicable precautions by shoring or otherwise to prevent danger to any person from the collapse of the building or structure or the fall of any part thereof..." (at p432)

7. The respondent was a person entitled to the protection of this regulation as a person "engaged in such building work". The argument for the appellants has been that he also fell into the category of a "person who...carries out any building work" and was therefore also subject to the liability of the regulation. The respondent argued that it is upon the builder, Buckman, or the sub-contractor, Shaw, that the regulation imposes its obligations. (at p432)

8. Section 3 of the Scaffolding and Lifts Act, 1912, as amended defines building work as follows:

"(a) work in constructing, erecting, adding to, altering repairing, equipping, finishing, painting, cleaning, signwriting or demolishing which when done in relation to a building or structure is done at or adjacent to the site thereof, and which when done in relation to a ship is done on or adjacent to a ship in dock or on slips; and (b) work in laying or lining any pipe having an internal diameter exceeding twenty-three inches, and work in lining any shaft, well or tunnel."

The work described includes specific functions, such as "erecting" (which was the respondent's function in this case) rather than the whole construction undertaking itself. Thus the obligation to observe the precautions prescribed in pars (1) , (2) , (3) and (16) of reg. 73 would here fall on the respondent Flanagan rather than on Shaw or Buckman, since it was he who was carrying out the relevant building work as described by s. 3. It cannot be said that either Buckman or Shaw was vicariously liable under the regulation as regards the work carried out by Flanagan, by considering Flanagan to be the "agent" of either appellant. Flanagan was an independent contractor, and the relationship between an independent contractor and the person with whom he contracts does not carry with it the legal consequences of the relationship of agency. It therefore does not here shift to Buckman or Shaw the liability imposed on Flanagan as the person carrying out the building work, since he was not carrying out such work as agent or either appellant in the strict sense. (at p433)

9. However, Buckman, by its servant or agent, High, did carry out building work within the scope of s. 3 when High cut the bolts holding the stanchion to the pad constructed by Buckman, it having been discovered that the bolts were misplaced. There is evidence that the work involved in correcting this misplacement was the responsibility of Buckman, and it was on Buckman's behalf that High undertook the cutting of the bolts. By carrying out this building work which was "likely to reduce, so as to endanger any person, the security or stability of any part of an existing building or structure or of a building or structure in course of construction" by its servant or agent, Buckman brought itself within the ambit of par. (17) of reg. 73, and there would seem to be evidence which could support a finding that Buckman was in breach of its duty under par. (17) to take "all practicable precautions" as are therein prescribed. In particular, no warning was given to Flanagan as to the unsafe condition in which the stanchion was now to be found. (at p433)

10. For these reasons, I take the view that the trial judge should have left to the jury the sixth count of the plaintiff's declaration, alleging on the part of Buckman a breach of the duty imposed on it by reg. 73(17), and I would order a new trial on this ground alone limited to the question of liability. It would follow that if the jury should return a verdict for the respondent on that count he will be entitled to recover damages in the sum of $5,000 because contributory negligence is not in New South Wales a defence in an action for breach of statutory duty such as that created by reg. 73(17). (at p433)

11. I would dismiss the appeal of Buckman and order a new trial on the statutory count under reg. 73(17) limited to the question of liability. In the case of the appeal of Shaw I would allow the appeal. (at p434)

STEPHEN J. The facts material to this appeal appear in the reasons for judgment of other members of the Court. (at p434)

2. The principal point which arises for decision is as to the identity of the persons required to observe and comply with reg. 73 of the regulations made under the Scaffolding and Lifts Act, 1912 (N.S.W.), as amended. When, as is commonly the case, construction work on any substantial scale is carried out by a head contractor who engages a number of sub-contractors, who may in turn engage sub-sub-contractors, as occurred in this appeal, the point is of particular importance in two respects; it will determine those who may be liable as defendants, both in criminal and in civil proceedings, following any breach of the regulation and it may also operate to defeat the rights of a prospective plaintiff, injured in consequence of such a breach, should he also prove to be a person on whom the regulation imposes the duty, breach of which is complained of. Proof of operation under the regulation may thus be a necessary ingredient not only of causes of action but also of defences to them since if the plaintiff be himself in breach of the relevant statutory duty he may be deprived of his remedy in damages. (at p434)

3. There are at least three possible views concerning the true meaning of reg. 73 and the identity of those persons upon whom the regulation casts duties. Each of these has been the subject of careful judicial analyses in the course of expressing the divergent views to be found not only in the reasons for judgment of the majority and minority members of the Court of Appeal Division in the present case and in the precedent case of Davey v. Skinner (1961) SR (NSW) 648 , but also in the reasons for judgment of members of this Court in this present appeal. The imprecision of the language in which the regulations as a whole are framed and the extent to which that language affords room for differences in interpretation is manifest. (at p434)

4. Having had the opportunity of considering the reasoning in these various judgments, which have subjected to careful examination every available aid to the interpretation of this ill-worded legislation, I do not propose to cover once again ground already much traversed. I agree with the views which have been expressed by the Chief Justice in his reasons for judgment and in the form of order which is there proposed. (at p434)

MASON J. The plaintiff respondent was injured on 12th September 1966 whilst engaged in certain construction work on a building site at Tumbarumba where a new high school was in course of erection. The appellant H.C. Buckman &Son Pty. Ltd. ("Buckman") was the contractor with the Department of Education for the erection of the building. The appellant Shaw was the sub-contractor to Buckman for the fabrication and erection of the steelwork. The respondent was in turn sub-contractor to Shaw for the erection of the steelwork. The respondent sued the appellants as individual tortfeasors. The declaration contained sixteen counts, eight counts against each of the appellants. The learned trial judge left to the jury one count only against each defendant, a count in common law negligence. The jury returned a verdict for the respondent against Buckman in the sum of $5,000. They found that the respondent was guilty of contributory negligence, apportioning to him eighty per cent of the blame, and reduced the verdict from $5,000 to $1,000. A verdict was returned in favour of Shaw as against the respondent. (at p435)

2. Included in the counts which the trial judge withdrew from the jury were five counts against each of the defendants alleging breaches of pars (1) , (2) , (3) , (16) and (17) of reg. 73 made under the Scaffolding and Lifts Act, 1912, as amended, on the ground that the respondent's duty under the regulations was coextensive with that of the appellants. (at p435)

3. The respondent sought a new trial on the grounds that the statutory counts should have been left to the jury and that the verdict was inadequate. He appealed also against the jury's finding on the issues of contributory negligence and apportionment and against the verdict in favour of Shaw. (at p435)

4. By a majority the Court of Appeal held that the verdict and judgment should be set aside and that there should be a new trial as against both appellants limited to certain counts which included not only the common law counts but also the five counts against Buckman and Shaw based on the paragraphs of reg. 73 to which I have referred. The Court took the view that the award of damages was inadequate but that apportionment was not erroneous. Why the Court of Appeal in its order made provision for a retrial which would include the issue relating to Buckman's common law liability to the respondent, an issue already decided by the jury without any vitiating error, does not appear. (at p435)

5. Buckman and Shaw have appealed to this Court against the order for a new trial both on the issue of liability and the issue of damages. The issue of liability turns largely on the interpretation which should be given to the relevant provisions of reg. 73. However, before coming to that question I should briefly summarize the evidence on which the respondent relies so far as it relates to the circumstances in which he sustained his injuries. (at p436)

6. It was the responsibility of the respondent under his sub-contract with Shaw to erect the steelwork. The accident in which the respondent sustained his injuries occurred after he had placed in position a vertical steel column some twenty feet in length. The column had been placed in position on a concrete footing or pad by means of the use of a crane provided by Shaw and operated by one High, an employee of Shaw, who was operating the crane to shift the steel in accordance with the instructions of the respondent. (at p436)

7. The concrete footing on which the column was erected was one foot nine inches by one foot nine inches, having a depth of one foot. At the top of the concrete there was a steel plate containing two holes through which protruded two bolts which had been set in the concrete beneath. The bolts had been provided by Shaw under his contract with Buckman but the footing had been constructed by Buckman which had set in the footing the bolts provided by Shaw. When the crane suspended the column over the footing it was lowered so that the bolts penetrated the base of the column and the respondent then screwed nuts on to the two bolts so that the position of the column was fixed in relation to the footing. Subsequently when an attempt was made to connect an intermediate beam at a height of ten feet, approximately, from the ground to the column it was discovered that the column was not in its correct position. The cause of this defect rested with Buckman which had failed to correctly position the two bolts in the footing. It seems clear that the responsibility for correcting the faulty positioning of the bolts was that of Buckman; certainly it formed no part of the responsibility of the respondent under his sub-contract which was limited to erection of the steelwork. (at p436)

8. After it was discovered that the column had been incorrectly positioned some argument ensued on the site. According to the respondent's evidence he left the immediate site of the erection to obtain a top beam, evidently with a view to placing it in position at the top of the vertical column. It seems, although the evidence does not explain how this came about, that the respondent considered that there was sufficient movement in the top of the column to enable the upper beam to be connected to it although the intermediate beam could not be so connected. Whilst the respondent was away from the site High cut the bolts which held the column in position on the footing at a point below the base of the column. The column remained in an upright position, resting on its base, two guy ropes having been attached to the main building and the crane by the respondent at the time when the column was initially erected. (at p437)

9. The respondent on his return was unaware that the bolts had been cut. No one at the site bothered to inform him of the cutting of the bolts. An extension ladder had previously been placed in position against the column by the respondent and it remained in that position on his return. The respondent, unaware of the danger, ascended the ladder, with a view to taking steps to connect the top beam. As he ascended the ladder the column began to tilt with the consequence that the plaintiff fell to the ground and was injured. (at p437)

10. It is no easy matter to ascertain the character and scope of the obligations imposed by reg. 73. Its interpretation is to be approached in the light of the statutory definition of "building work" in s. 3 of the Scaffolding and Lifts Act and the general provisions of the Act. By s. 6 every person is required "before commencing to carry out any building work" of the kind here in question to serve on the chief inspector a notice in writing under his hand of his intention so to do at least twenty-four hours before commencing to carry out such building work. The purpose of the notice is to enable the chief inspector or other departmental officers to make inspections with a view to ascertaining whether the particular requirements of the Act and the regulations have been complied with. (at p437)

11. By s. 22 the Governor is empowered to make regulations for carrying out the Act. In particular, he is empowered to make regulations relating to the safeguards and measures to be taken for securing the safety and health of persons engaged in building work (s. 22(2)(g)(v)). Regulation 73 appears in Pt V of the regulations, under the heading "Safeguards and Measures to be Taken for Securing the Safety and Health of Persons Engaged in Building Work". It provides:

"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 minimise 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 -"

These opening words are followed by twenty-two particular requirements relating to particular aspects of building work. The requirements which call for consideration in this case are:

"(1) provide suitable and safe scaffolding, which shall conform to the requirements of these Regulations, for all work which cannot be done safely by a person standing on permanent or solid construction, except when such work can be done safely from ladders constructed in conformity with the provisions of these Regulations: (2) provide and maintain safe means of access to every place at which any person has to work at any time; (3) 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; ... (16) take all practicable precautions by the use of adequate temporary guys, stays, supports and fixings or otherwise to prevent danger to any person through the collapse of any part of a building or structure during any temporary state of weakness or instability of the building or structure or part before the building or structure is completed; (17) where any building work is carried on which is likely to reduce, so as to endanger any person, the security or stability of any part of an existing building or structure or of a building or structure in course of construction, take all practicable precautions by shoring or otherwise to prevent danger to any person from the collapse of the building or structure or the fall of any part thereof." (at p438)

12. The initial question is as to the identity of the person on whom the obligations prescribed by reg. 73 are imposed. In the familiar case in which a builder contracts to erect a building, and enters into a sub-contract for the performance of part of the work in the course of which a breach of the regulation occurs, the answer to this question gives rise to difficulties. Are the obligations imposed on (a) the builder, (b) the sub-contractor who performs the relevant building work or (c) both the builder and the sub-contractor? In Davey v. Skinner (1961) SR (NSW) 648 Evatt C.J. and Herron J., concluding that the word "agent" was wide enough to exclude an independent contractor, thought that the question should be answered in terms of (c) above. Sugerman J., who dissented, thought that the regulation imposed an obligation on the builder, that is, the head contractor. (at p438)

13. Because the class of persons who are obliged by s. 6 to give notice of intention to commence to carry out building work is described in language similar to, though not identical with, that found in the opening words of reg. 73, it is necessary to look at s. 6. Under the section it is the person who intends "to carry out" the building work who is to give the notice. The reference is to the person (not being an employee) who intends to perform the relevant building work, not to a person who merely contracts to do it but arranges for its performance by another. Where the work is undertaken by a sub-contractor, it is for him rather than the builder or head contractor to give the notice for in my view the obligation is cast upon him by the section. (at p439)

14. No doubt it would be convenient if the obligation were placed on the contractor for the entire building but this in itself constitutes no reason for giving a different construction to the language which has been employed. And in any event it seems to me that the imposition of the obligation on the persons who will execute the particular works which may be involved in the erection of a building is a practical means of ensuring that the chief inspector and departmental officers will have adequate opportunity of making inspections. (at p439)

15. This view of s. 6 conforms with the statutory definition of "building work" which by s. 3 is defined in the absence of a restraining context or subject matter to mean -

"(a) work in constructing, erecting, adding to, altering, repairing, equipping, finishing, painting, cleaning, sign writing or demolishing which when done in relation to a building or structure is done at or adjacent to the site thereof, and which when done in relation to a ship is done on or adjacent to a ship in dock or on slips; and (b) work in laying or lining any pipe having an internal diameter exceeding twenty-three inches, and work in lining any shaft, well or tunnel."

The definition is not expressed by reference to the erection of a particular building or structure. It looks to particular activities or operations of the character described which may be undertaken in relation to a building or structure. No doubt the erection of a building may fall within the statutory definition but that is because the totality of the activities or operations which are involved in the erection of the building answers the description contained in the definition. (at p439)

16. Regulation 73, unlike s. 6, speaks of a person who carries out building work directly or by his servants or agents. But for the presence of the word "directly" and the alternative reference to "servants or agents" it would be easy to conclude that the regulation imposed a duty, conformably with s. 6, on the person (not being an employee) who executes the relevant building work and on that person alone. The obligation, breach of which is punishable by conviction and penalty, would then be confined to the person who "carries out" the work and has it within his power to comply with the stipulated requirements in so far as they relate to the work. However, some effect must be given to words which indicate that the obligation rests not only on a person who carries out the work directly or by his servants but on one who does so by his agents. The word "servants" excludes independent contractors, but the same cannot be said of the word "agents". Although an independent contractor is not usually described as an agent of the person with whom he contracts, it may be correct in a suitable setting to speak of one to whom the performance of a task is by contract delegated by another as the agent of that other and therefore to refer to a sub-contractor (and a sub-sub-contractor), although he is an independent contractor, as the agent of the other contracting party and where appropriate, the builder. (at p440)

17. Such a setting is provided by reg. 73. The duties which it imposes are in my view prescribed not only for the protection of the servants of the individual contractor but for the protection of all persons engaged in building work in a particular building. So much becomes apparent when attention is given to particular paragraphs of reg. 73, notably pars (2) , (3) , (4) , (5) , (6) and (8) . Yet the duties imposed by these paragraphs, if they are to be performed throughout a building, must in general be discharged by the builder or head contractor, for the matters to which they relate, although relevant to the safety of all who work in a building, would not necessarily fall within the work undertaken by sub-contractors. (at p440)

18. The competing interpretation is that the duty of compliance is cast only upon a person in relation to the work which he carries out by his servants or agents, excluding that work which is undertaken by sub-contractors. Because the opening words of the regulation limit the class to be protected to those "engaged in such building work", it would exclude sub-contractors and their employees from the class sought to be protected in relation to work done by the builder or head contractor. This is a narrow view of the operation of the regulation. Despite the need to construe the regulation strictly because it is primarily penal in character (see reg. 164), it is a view which in my view should not prevail. This conclusion accords with the observations of Williams J. (with whom Webb J. agreed) in Australian Iron and Steel Ltd. v. Ryan (1957) 97 CLR 89, at p 96 . (at p441)

19. I can find little support for the submission that reg. 73 casts a duty on the builder to the exclusion of sub-contractors, the view which Sugerman J. preferred in Davey v. Skinner (1961) SR (NSW) 648 . Not only is it inconsistent with the opening words of the regulation, but it is at variance with my understanding of the statutory definition of "building work" contained in s. 3. Accordingly, I approach the matter on the footing that the regulation imposes duties on builder and sub-contractor and that the duties extend to building work done by a person through a sub-contractor. (at p441)

20. On the evidence there was a prima facie case of breach of the obligations prescribed by pars (1) , (16) and (17) . However, in my view the evidence fell short of establishing a prima facie case of breach of pars (2) and (3) . The position of the respondent on the ladder at the time when the column fell did not appear with any clarity; it was uncertain whether he had reached the position on the ladder from which he intended to work or whether he was still proceeding to that position. (at p441)

21. So far as it is based on breach of the other three paragraphs the respondent's case raised a problem of some nicety. As Lord Reid remarked in Boyle v. Kodak Ltd. (1969) 1 WLR 661, at pp 665-666; (1969) 2 All ER 439, at p 440 :

"The doctrine of absolute liability, which was invented by the courts, can lead to absurd results when coupled with the employer's vicarious liability. It would be absurd if, notwithstanding the employer having done all he could reasonably be expected to do to ensure compliance, a workman, who deliberately disobeyed his employer's orders and thereby put the employer in breach of a regulation, could claim damages for injury caused to him solely by his own wrongdoing. So the courts have quite properly introduced a qualification of the employer's absolute liability. A principle of law has been established that, although in general the employer is under absolute liability in respect of such a breach, the employer may have a defence to an action against him by an employee who is also in breach." (at p441)

22. In that case the principle was applied to a situation in which the plaintiff employee and the defendant employer were both in breach of the same statutory duty. However, the facts were such that the plaintiff succeeded because it was not shown that there was an absence of fault on the part of the defendant. (at p441)

23. The rationale of the principle has sometimes been ascribed to the doctrine of delegation of duty and at other times to the doctrine of circuity of action. More recently it has been attributed to the concept of causation (Ross v. Associated Portland Cement Manufacturers Ltd. (1964) 1 WLR 768, at p 777, 784; (1964) 2 All ER 452, at pp 455-456, 460. ) and in Boyle's Case (1969) 1 WLR 661; (1969) 2 All ER 439 it was described as providing "a defence to an action". (at p442)

24. It is, I think, now accepted that the true basis of the principle is not to be discovered in the doctrine of circuity of action. Nor, for my part, are its origins to be found solely in the doctrine of delegation or in the concept of causation, although each may be said to contribute to the formulation of the principle. If it be conceded, as it must, that an employee can recover damages against his employer for breach of statutory duty of which the sole cause is a breach of the same statutory duty committed by a fellow employee, then the rule is seen not exclusively as a principle of causation but as one which specially limits the liability of a defendant who has delegated to the plaintiff the performance of a task which imposes upon each of them a statutory obligation in the breach of which the plaintiff is solely at fault. Yet, although denying a liability in the defendant, it concedes that he is in breach of his duty and regards the breach as non-actionable because it came about solely in consequence of the plaintiff's fault. (at p442)

25. The language in which the principle has been expressed, notably that of Lord Reid in Boyle's Case (1969) 1 WLR, at pp 665-666; (1969) 2 All ER, at p 440 , tends perhaps to suggest that it is a rule invented by the courts as a proposition of the general law superimposed upon statutory provisions which impose a duty and create a cause of action in favour of private individuals. I would not wish to quarrel with these observations so long as it is understood that the formulation of the principle is not unconnected with the construction of the relevant statutory provisions. Were it otherwise I should feel some difficulty in its application in New South Wales in face of s. 2(1) of the Statutory Duties (Contributory Negligence) Act which provides that contributory negligence shall not be a defence to an action for damages for personal injury founded on a breach of a statutory duty imposed on the defendant for the benefit of a class of persons of which the plaintiff was a member (cf. Sherman v. Nymboida Collieries Pty. Ltd (1963) 109 CLR 580, at p 591 ). (at p442)

26. It is now beyond question that reg. 73 confers on an employee engaged in building work a private right to compliance with its requirements and a consequential cause of action in the event that he is injured as a result of breach of an obligation which it prescribes (Australian Iron and Steel Ltd. v. Ryan (1957) 97 CLR 89 ). This conclusion, as Kitto J. pointed out (1957) 97 CLR, at pp 98-99 , rests "in the last analysis ... upon the true construction of the statutory provision which authorises the regulations". However, as his Honour also observed, an implication is made that a private right is conferred, not as a matter of verbal interpretation, but rather upon "a consideration of what the provision does" and of its nature and purpose. (at p443)

27. It is in this sense that it may be said here that the statute and the regulation confer no private right upon a sub-contractor against the builder or head contractor to performance of a statutory duty when the doing of the work which attracts the performance of the duty has been wholly delegated to the sub-contractor so as to impose the same duty on him and he does the work in breach of the duty in the absence of fault on the part of the builder. To avoid the absurdity to which Lord Reid referred and to do justice between the parties it is necessary to imply a limitation in the class of persons for whose benefit the statutory duties are imposed and who may recover damages for breach of the statutory duty so as to exclude the plaintiff who sues in the circumstances mentioned. This implication is made as a matter of construction of the statute and the regulations and in the sense already explained. (at p443)

28. Once this view is accepted, it is evident that the respondent cannot succeed on the causes of action based on breach of pars (1) and (16) of reg. 73. In each instance, assuming a breach by the appellants, it was a breach which was brought about by the respondent's failure to comply with the particular requirement. The erection of the steelwork was his responsibility under the contract; he was experienced in the work; and the evidence falls short of indicating any participation by the appellants in his guying of the vertical steel column (using two guy ropes instead of four) or in his use of the ladder against the unstable column (instead of using scaffolding, assuming that to have been required). (at p443)

29. However, a different view must be taken of par. (17). I agree with the majority of the Court of Appeal in thinking that there was evidence of a breach of the obligation which it imposed. Moreover, there was evidence that the rectification of the incorrect siting of the column was Buckman's responsibility, and that at the request of the respondent one of Buckman's supervisors approved the burning off of the bolts at the base of the column. There was also evidence from which it might be inferred that the burning off was undertaken by High who did so in his capacity as the employee of Shaw and not as an employee of the respondent. From this material a jury could conclude that the appellants' breach of par. 17 did not solely arise because the respondent was in breach of the same provision; on the contrary a jury might well conclude that the appellants participated by act or approval in reducing the stability of the column without taking any step prescribed by par. (17). (at p444)

30. I am therefore of the opinion that the learned trial judge was correct in refusing to allow the counts based on reg. 73, pars (1) , (2) , (3) , and (16) to go to the jury, but was in error in taking away from the jury the counts based on par. (17). (at p444)

31. There remains for consideration the question of damages. It is no easy task for a plaintiff to establish that a jury verdict should be set aside on the ground that it is inadequate. It is within the province of the jury to determine how much, if any, of the plaintiff's case will be accepted. Here it is obvious that the jury formed an unfavourable view of the respondent. (at p444)

32. The objective facts are that he sustained "fracture-dislocation" of the ankle which required the insertion of a metal screw in the ankle joint. He was in plaster for three months and off work for four months. He made a good recovery and walked without a significant limp, although there was a slight restriction of movement ten per cent upwards and fifteen per cent downwards. Medical opinion was that the condition of the ankle would deteriorate in later years and would probably lead to arthrodesis in some twenty years' time when he was aged about fifty-five. The respondent had given up his job as a steel erector and was working in a supervisory position in the building industry, but no evidence was called to show that he sustained or was likely to sustain any diminution in earnings by reason of this change in occupation. Special damages and out-of-pocket expenses were in the vicinity of $1,000, with the result that the amount of general damages seems to have been assessed at a figure in the order of $4,000, or perhaps $3,500 or a little less if some allowance is made for the cost and loss of earnings attributable to the arthrodesis operation. (at p444)

33. Apart from pain and suffering and loss of amenity of life the respondent probably sustained some impairment of his capacity to earn in that he could no longer pursue his trade as a steel erector. The difficulty is that no evidence was led which might have enabled the jury to form a precise view as to the extent and seriousness of that loss. Nevertheless it would be proper to conclude that to disable the respondent from carrying on the particular trade in which he was experienced was to inflict on him a significant impairment of his capacity to earn. (at p445)

34. In these circumstances, although initially I was disposed to doubt whether it was a proper case for intervention by an appellate court, weight must be given to the circumstance that the amount awarded was low and that the Court of Appeal, although by majority, had after careful examination of the matter, held that the amount awarded was wholly disproportionate to the injury sustained. (at p445)

35. In the result, therefore, I am of opinion that there should be a new trial against each appellant on the counts based on reg. 73 par. (17) and on damages. (at p445)

JACOBS J. The facts are set out in the reasons for judgment prepared by Mason J. and there is no need for me to repeat them. I agree with Mason J. in his conclusion that the obligations under reg. 73 are imposed both on the head contractor and on any sub-contractor who carries out the part of the work in the course of which a breach of the regulation occurs. I also agree that the obligation to give the notice under s. 6 falls upon the sub-contractor in respect of the work to be performed by him but this obligation may in my opinion be performed on his behalf by the head contractor giving notice in respect of the whole project and paying the requisite fees in respect of the whole project under reg. 72A. However, it is for the sub-contractor to satisfy himself that the notice has been given on his behalf. (at p445)

2. The obligations imposed under the Act and regulations are primarily public obligations failure to observe any one of which will result in a criminal offence. The obligation is imposed on persons carrying out building work. These words envisage a degree of control over the particular building work and are used distinctly from "engaged in building work", words which do not contain any element of control or direction of the work. The obligation is an absolute one and cannot as an obligation be delegated to another, whether that other be an employee or a sub-contractor. Of necessity however the performance of the acts required to be done in order to comply with the statutory duties must in many instances be delegated to an employee or to a sub-contractor. The present case is one of a sub-contractor, Flanagan, from a sub-contractor, Shaw, the head contractor being H.C. Buckman &Son Pty. Ltd. When a person carrying out building work delegates to an employee or sub-contractor the performance of acts required to be done in order to comply with the statutory duties he is not likely to be able in all cases prior to that delegation and the consequent performance of those acts to provide that employee or that sub-contractor with the protection which the particular statutory duty imposes. It must therefore often be the position that the statutory duty does not extend to the employee or sub-contractor engaged in the acts necessary for the fulfilment of that same statutory duty. When an employee is instructed to do building work in circumstances where the employer has a statutory duty to do acts or things in order to ensure their safety when engaged on the building work there must be more than an implication that they will take any necessary preliminary steps in order to ensure that the work which they are instructed to do is done in conditions whereunder the statutory duty of the employer is fulfilled. An employee must be particularly directed to do the specific work necessary in order to fulfil the employer's statutory duty and must be provided with all material, assistance and supervision necessary to ensure his ability to comply with the statutory duty. A sub-contractor must be under a particular contractual obligation expressed or necessarily to be implied from the nature of the work to carry out the preliminary work necessary to ensure that when he and those under him are engaged in the building work they will be so engaged in conditions which satisfy the statutory duty. (at p446)

3. Where the issue is whether a person carrying out building work is in breach of statutory duty as a public obligation it will seldom be an answer on his part that he had given instructions to an employee or a sub-contractor to do the work. He will usually be responsible for the default of either. However it is otherwise where the only person exposed to accident risk is the employee or sub-contractor himself. Where the exposure to accident risk occurs in the course of complying with the statutory duty alleged to have been breached, and where the performance of the acts necessary to comply with the statutory duty have been properly delegated to the employee or sub-contractor, or where the exposure to accident risk occurs as a result of the employee or sub-contractor having failed to perform the necessary acts performance of which has been properly delegated to him, then the exposure to accident risk of that employee or sub-contractor alone is not a breach of the statutory duty, even though at the same time there would be a breach of the statutory duty if other persons engaged in the building work were exposed to that same risk. If there is no breach of the statutory duty in such circumstances it follows that there is no right of action in the employee or sub-contractor based upon a breach of the statutory duty. (at p447)

4. It will generally be found in the case of an employee and it will often be found in the case of a sub-contractor that, though performance of the acts necessary to performance of some statutory duties may properly be delegated to them, the performance of other acts and the compliance with other statutory duties will remain the direct obligation of the employer or the head contractor as the case may be. Whether in any particular case this is so will depend upon the circumstances. In the present case the plaintiff Flanagan was the steel rigger by sub-contract. The nature of this work carried with it the implication that to him had been delegated the responsibility of taking whatever steps were necessary to comply with such of the regulations as governed the actual work of rigging the steel which was to be performed by him. It appears to me that the obligation imposed by reg. 73(1) is such a regulation, and likewise sub-regs. (3) and (16) . On the facts of this case the only allegation relating to the provision of a safe means of access as required by sub-reg. (2) was in respect of access which Flanagan himself must have been required to provide in the course of his rigging work under his sub-contract. Therefore I do not think that there was any evidence of a breach of these regulations either by H.C. Buckman &Son Pty. Ltd. or by Shaw. (at p447)

5. Sub-regulation (17) stands differently. There could be no implication that the taking of all practicable precautions to prevent danger to any person from the fall of the stanchion, the stability of which had been reduced, had been delegated to Flanagan as part of his obligation under the sub-contract. He did not even know of the reduction in stability but even if he had known of it the obligation remained on those who were carrying out that part of the building work, his two superior contractors, H.C. Buckman &Son Pty. Ltd. and Shaw, to take all practicable precautions to prevent danger to any person, including Flanagan, from the fall of the stanchion. (at p447)

6. I therefore agree with Mason J. that there was an issue to go to the jury on the count alleging breach of the statutory duty imposed by sub-reg. (17). I agree that there should be a new trial on this count. I also agree with his reasons for ordering a new trial on the question of damages. (at p448)

Orders

H.C. BUCKMAN &SON PTY. LTD. v. FLANAGAN AND ANOTHER.

Appeal allowed with costs.

Order of the Court of Appeal Division of the Supreme Court of New South Wales varied so as to confine the new trial to count 6 of the declaration, and the amount of damages.

SHAW v. FLANAGAN.

Appeal allowed with costs.

Order of the Court of Appeal Division of the Supreme Court of New South Wales set aside and in lieu thereof order the appeal to that Court against judgment in favour of the appellant dismissed with costs.