Action—Statutory duty—Regulation creating offence to use explosive-powered tool unless qualified operator—Offence to employ, instruct or allow unqualified operator to use tool—Injury resulting from use of tool by unqualified operator—Action against employer—Count based on breach of regulation—Whether private right of action for damages created—Causation—Scaffolding and Lifts Regulations (N.S.W.), regs. 118A, 118B, 118E.
Decisions
October 6. The following written judgments were delivered: - MASON J. The respondent was employed by the appellant as an apprentice carpenter in the construction of a kiosk near the Cotter Dam in the Australian Capital Territory. He was seriously injured on 14 October 1971 when he was struck in the forehead by a three-inch steel pin discharged from a Ramset explosive-powered gun fired by a fellow employee, Mark Alhovirta, a permanent employee of Aaro Jarvin temporarily under the control of the appellant. Alhovirta, who was sixteen years of age, was not a qualified operator of the Ramset gun because he was under the age of eighteen years and he had not been trained or instructed as required by Pt IXA of the Scaffolding and Lifts Regulations of the State of New South Wales which apply in the Territory by virtue of the provisions of the Scaffolding and Lifts Ordinance 1957. Nor did he have any knowledge of the provisions of Pt IXA. (at p220)
2. The respondent sued the appellant and Jarvin for damages for negligence and breach of statutory duty. In the Supreme Court of the Australian Capital Territory he failed on the ground that the evidence presented was inadequate to establish a case of negligence and that breach of the regulations did not give rise to a civil cause of action. On appeal in the Full Court of the Federal Court he succeeded against the appellant, the members of the Full Court unanimously disagreeing with the conclusions reached by Blackburn C.J. at first instance. In the event the respondent obtained judgment in the sum of $118,982.35, this being the amount of damages assessed by Blackburn C.J. (at p221)
3. The respondent seeks special leave to appeal against this assessment on the ground that it is inadequate in light of this Court's decision in Barrell Insurances Pty. Ltd. v. Pennant Hills Restaurants Pty. Ltd. (1981) 145 CLR 625 . It has been agreed that the application should stand over pending the determination by this Court of other appeals involving the application of Barrell Insurances to personal injury cases. (at p221)
4. The evidence does not paint a clear and detailed picture of the operation in which Alhovirta was engaged or of the Ramset gun which he was using. It appears that he had been instructed to nail hardwood blocks to steel trusses in the roof of the kiosk. According to Alhovirta's evidence the steel pin when fired from the gun passes through the hardwood block and penetrates the steel truss. There…
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
AGLC
John Pfeiffer Pty Ltd v Canny [1981] HCA 52
Case
[1981] HCA 52
Decision Date
CaseChat Overview and Summary
John Pfeiffer 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 appellant's liability for damages arising from a motor vehicle accident in which the respondent, Ms Canny, was injured. The primary issue on appeal was whether the appellant could rely on a defence of contributory negligence, despite having failed to plead it in its defence at trial.
The High Court was required to determine whether the defence of contributory negligence could be raised for the first time on appeal, and if so, whether the facts of the case supported such a defence. This involved considering the principles governing the amendment of pleadings and the circumstances in which an appellate court may entertain new arguments. The court also had to assess whether the respondent's conduct contributed to her injuries.
The majority of the High Court, comprising Mason, Murphy, Aickin and Wilson JJ, held that while an appellate court has the power to grant leave to amend pleadings, such leave should not be granted where it would cause prejudice to the other party or where the new defence was unlikely to succeed. In this instance, the court found that the appellant had not established that the respondent was contributorily negligent, and therefore, leave to amend the defence was refused. Brennan J dissented, arguing that the defence should have been permitted.
The appeal was dismissed, and the judgment of the Supreme Court of New South Wales was affirmed.