John Pfeiffer Pty Ltd v Canny

[1981] HCA 52

HIGH COURT OF AUSTRALIA

Mason, Murphy, Aickin, Wilson and Brennan JJ.

JOHN PFEIFFER PTY. LTD. v. CANNY

(1981) 148 CLR 218

6 October 1981

Action

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 is some uncertainty as to how far the pin penetrates the truss. Alhovirta gave this evidence:

"And do you recall whether in fixing the blocks of wood to the steel trusses did you, endeavouring to fire the fastener through the steel truss so that it protruded through the truss and then so that you could hammer a piece of wood onto the other side of it onto the point of the nail? . . . As far as I can recall, the intention of the job was to fire the nail from one side of the timber and enter the steel truss just far enough so one side would remain there and then go around the other side and fire the other one as well onto the other side."

This answer suggests that hardwood blocks had to be fixed on each side of the steel truss and that it was necessary to fire a pin on each side to bring this about. (at p221)

5. Jarvin, who was accepted as a reliable witness, gave evidence that indicated that Alhovirta was firing steel pins which protruded through the opposite side of the steel joists. He regarded this as an undesirable practice. He stated that he observed steel pins protruding through the opposite side of the joists after the accident. At the conclusion of his evidence the following discussion took place between the trial judge and counsel:

"His Honour: Thank you, Mr Jarvin. Just before Mr Jarvin leaves the box there is one matter that I would like to raise. It may be that I can simply be informed from the bar table. Am I right in thinking that the Ramset gun was capable of firing a nail or pin that would go through timber and actually penetrate the steel - have I got that right or is that wrong? Is that an admitted fact or is that a controversial . . . ? Mr Kelly: Yes, Your Honour. Mr Norris: Yes, Your Honour. His Honour: I See, the purpose of it in fact was to provide enough power to allow the projectile as it were to actually penetrate the steel in the RSJ, is that right?

Mr Norris: Yes, Your Honour." (at p222)

6. The evidence was equally vague as to the mechanism and operation of the Ramset gun. Alhovirta stated that he was using the gun to nail the blocks of wood against the trusses. He described the operation of the gun in these terms:

"You open up the gun, you pull out a little section where you place the charge in, you place a nail inside, put the little charging section on top of the nail, close up the gun - it's got a flange on the front of the gun - push the flange in and just pull the trigger and it fires."

He went on to say that the gun exploded when the trigger was pulled and that it was fired by a .22 blank. (at p222)

7. He stated that he was not qualified to operate the gun, that he had received some instruction in its use by another employee but that he had not been fully instructed in the dangers associated with its use or in the precautions that should be taken with respect to it. He also stated that he did not know that there were any regulations relating to the use of the gun and that he did not know the regulations. (at p222)

8. In evidence he gave an account of the accident. According to him, when he fired the pin which struck the respondent, he was attempting to fix the last of the wooden blocks to the steel trusses. The charge used to fire the pin had been obtained from a box of charges, given to him by the appellant's foreman, from which all previous charges had been obtained. He had not noticed any unusual feature of the firing of the gun or of the pins prior to the shot in question. He said that immediately prior to the accident the respondent was up on the roof with him. At the time the gun was fired the respondent was in front of him. Immediately before firing, Alhovirta had asked the respondent if he could move behind him. Alhovirta described what then happened in these terms:

"Did he move? . . . He moved slightly to one side and then - what must have appeared safe to him and said I could go ahead and fire. What happened after that? . . . I looked over towards John after I fired and I saw blood coming from his forehead and I hopped down from the position I was, moved over to John passed him my handkerchief and said, 'What happened?' You say you hopped down from your position, where was he in relation to that position? . . . Well, the way the roof section was there was - the roof trusses was a bit lower and the roof was built up at an angle, then the steel trusses protruded from the lower level. I was on a higher level where I was shooting the block and I hopped down to the roof trusses to where John was standing.

How far below you was he when you fired the shot? . . . As far as I can remember it would be several - three feet possibly, three feet." (at p223)

9. After the accident Alhovirta noticed that the nail from the last shot which he had fired prior to the accident had gone straight through the timber and straight through the truss. He said: "it appeared that it had gone straight in and had come out at an angle at the other side." He then "hammered" another Ramset nail into the hole and blocked it up. He claimed that on the following day he told the inspector what he had done as he thought he might "get in trouble". The inspector, Mr. Donald, noted that there was a hole through the steel on the following day. (at p223)

10. Alhovirta made a written statement relating to the accident one week after it occurred. The version given of the accident in the statement is not entirely consistent with his oral evidence. In the statement he said that the timber attached to the steel truss was cut from hardwood two inches by four inches and about eighteen inches long. He described the charge used to fire the gun as "a strong charge". This he knew from a label on the box. He stated that the respondent was standing fifteen feet away at the time he was struck by the pin and that it seemed "that the drive pin after striking the steel girder had ricocheted and struck" the respondent in the head. Paragraph 22 of the statement is in these terms:
"As I was frightened of what may happen to me since I had never been involved in this sort of thing before, I later went back to where the accident happened and noted that the hole left by the drive pin was at an angle so I put another drive pin into the same hole." (at p223)

11. Blackburn C.J. did not accept so much of the evidence of the respondent as related to the accident itself. Instead he relied on Alhovirta's account of events, preferring his written statement to his oral testimony in some respects. (at p223)

12. It is convenient now to refer to the regulations. They were made under the Scaffolding and Lifts Act 1912 (N.S.W.). Part IXA is headed:
"SAFEGUARDS AND MEASURES TO BE TAKEN FOR SECURING THE SAFETY AND HEALTH OF PERSONS IN CONNECTION WITH THE USE OF EXPLOSIVE-POWERED TOOLS IN BUILDING WORK, EXCA- VATION WORK AND COMPRESSED AIR WORK."
Regulation 118A (1) provides:
"This Part of these Regulations shall apply to and in respect of the use of explosive-powered tools in building work, excavation work and compressed air work." (at p224)

13. The expression "explosive-powered tool" is defined by reg. 118A (2), unless the contrary intention appears, as meaning - ". . . a tool whereby a projectile may be driven against, into or through any substance by means of an explosive, and includes every attachment to and accessory of such tool and every device used or adapted or intended to be used therewith." "Tool" is defined by the same regulation to mean "explosive-powered tool". (at p224)

14. The expression "qualified operator" is defined to mean - ". . . a person who -

(a) is over the age of eighteen years; (b) has been thoroughly trained in the correct use, adjustment, assembly and taking apart of explosive-powered tools; (c) has been fully instructed as to the dangers associated with explosive-powered tools and the precautions to be taken in respect of them; and (d) has a thorough knowledge of this Part of these Regulations."

Regulation 118B provides:

"(1) Operators to be Qualified. - (a) No person who is not a qualified operator shall use a tool in any work. (b) No person shall employ, instruct or allow any person to use a tool in any work without first ensuring by proper enquiry that such person is a qualified operator and is not by reason of any infirmity, disability or incapacity unfit to use such tool. (2) Training of Operators. - Nothing in paragraph (1) of this Regulation shall apply to the use of any explosive-powered tool by a person who, under the immediate supervision and control of a qualified operator, is being trained to be a qualified operator."

Regulation 118E, so far as it is relevant, provides:

"(1) General. - No person shall use in any work, or employ, instruct or allow any person to use in any work, any tool or other substance or thing contrary to this Regulation, or without the measures and precautions prescribed by this Regulation being taken. . . . (3) Strength of Explosive Charges. - Every reasonable precaution, including where advisable the making of suitable tests, shall be taken to ensure that the explosive charge used in a tool - (a) is of no greater strength than is necessary for the purpose for which the tool is being used; (b) is not of such strength that the whole of the projectile might pass through the substance on which the tool is being used, unless such substance is backed by protective material capable of fully absorbing the energy of the projectile. . . . (5) Care in Handling of Tools. - Every person while using a tool or carrying or handling a loaded tool shall at all times - (a) keep all parts of his body clear of the open end of the barrel of the tool and keep such end pointed away from himself and all other persons; (b) exercise the utmost care to avoid injury to himself and others. (6) Firing of Tools. - No person shall fire a tool unless - (a) he is in a safe, well-balanced position so that inadvertent tilting or misalignment of the tool at the time of firing will not occur; (b) he is holding the tool perpendicular to the surface on which he is using the tool and so that the muzzle end of its barrel or barrel extension is in contact with that surface.

. . . " (at p225)

15. Blackburn C.J. found that at the time of the accident Alhovirta, though a permanent employee of Jarvin, was at the disposal and under the control of the appellant. This finding is not in contest. As I have already indicated, his Honour generally accepted the version of events set forth in Alhovirta's written statement. In addition he appears to have accepted Alhovirta's sworn evidence that he saw the respondent in front of him and asked him if he could move behind him, whereupon the respondent moved slightly to one side and informed Alhovirta that he could go ahead and fire. However, his Honour was not prepared to say that Alhovirta held the gun in any particular direction and was unable to infer that Alhovirta was negligent in that, when firing the gun, he held it in the direction of the respondent. Consequently, the trial judge found that it had not been shown that any negligence or breach of duty on Alhovirta's part in the firing of the gun was the cause of the injury. (at p225)

16. Although it was established that Alhovirta was not a qualified operator within the meaning of the definition in reg. 118A (2), Blackburn C.J. concluded that a breach of the regulation did not give rise to a civil action for the benefit of the respondent and that, in any event, it was not established that a breach of the regulation caused the respondent's injury. His Honour was unable to distinguish the regulations from the provisions considered by this Court in Leask Timber and Hardware Pty. Ltd. v. Thorne (1961) 106 CLR 33 , where it was held that a provision prohibiting the employment of a person to drive a power crane without a certificate of competency did not create a private right of action in a person injured by the driving of a crane by an uncertificated driver. (at p226)

17. The Federal Court considered the regulations were distinguishable from the provisions considered in Leask and that on their true construction they created a private right of action for breach by an employer of reg. 118B (1) (b). They also held that breach of this statutory duty was the cause of the accident. In reaching this conclusion (1980) 49 FLR, at p 240; 33 ALR, at p 210 their Honours relied strongly on the proposition that a qualified operator having a thorough knowledge of reg. 118E (3) "would have been aware that the explosive powered charges used in such tools varied in strength and that it was important to ensure that a charge was not of greater strength than was necessary for the purpose for which the tool was being used; or that, if it was, there should be a protective backing capable of fully absorbing the energy of the projectile." They also thought that a qualified operator having a thorough knowledge of reg. 118E (5) would have been fully aware of the importance while using such a tool of keeping it pointed away from other persons and exercising the "utmost care to avoid injury to others". They referred to the uncontradicted evidence of Jarvin who stated that on the day following the accident he found that a number of nails which had been fired by the Ramset gun had protruded beyond the outer edge of the rolled steel joists. They thought that a qualified operator would not have proceeded to fire when the appellant was in front of him and that if such an operator had been using the tool it was unlikely that the nail would have gone through the wood and steel as it did. Consequently it could be said that the appellant by permitting an inexperienced apprentice to use the gun instead of a qualified operator had greatly increased the risk of the respondent receiving injury. (at p226)

18. The appellant's case in this Court is that : (1) the evidence does not permit an inference that it was Alhovirta's firing of the gun that caused the injury; (2) on their true construction the regulations did not create a civil cause of action for breach; (3) breach of reg. 118B (1) (b) was not the cause of the injury.

(1) Did Alhovirta's firing of the gun cause the injury? (at p227)

19. The appellant's argument on this point draws heavily on the judgment of the trial judge and the deficiencies in proof which he identified in the respondent's case. The response made by Mr. Murphy Q.C. is that the learned judge was too much concerned with evidence that he did not have and too little concerned with the evidence that he had. The appellant emphasizes the absence of evidence relating to the mechanism of the gun and its operation, the absence of evidence of what a qualified operator would have done in the circumstances, the possibility that the injury could have been caused by malfunction of the gun or a defective charge, one which was more powerful than it should have been, the possibility that the steel pin had a latent defect leading to its behaving in an unexpected and erratic fashion and the further possibility that there was a latent weakness in the steel joist. (at p227)

20. Granted that the evidence was meagre, I nevertheless think that there was sufficient material to warrant the drawing of an inference by the Federal Court that the injury was caused by Alhovirta's firing of the gun. I put aside the captious suggestion that it was not shown that the Ramset gun had a barrel. The tool was constantly described as a gun. The evidence was that it had a breech and that it was loaded with a blank cartridge which, on discharge, fired a steel pin into the rolled steel joists. The irresistible inference is that the Ramset gun had a barrel. (at p227)

21. The Full Court was in my view correct in inferring that Alhovirta fired the gun when the respondent, having merely moved to one side, remained ahead of Alhovirta and that a qualified operator would not have fired the gun in these circumstances. Although we have no evidence as to the length of the barrel of the Ramset gun, it is evident that it was relatively short. It would not have the directional accuracy of a rifle. Moreover, there was a need to take precautions against the possibility that the pin might ricochet from the steel joist or pass through it at an angle. These factors made it essential that for reasons of safety the gun should be fired only when the respondent was behind Alhovirta. (at p227)

22. I have a little more difficulty with the finding that Alhovirta used charges that were too powerful and that a qualified operator would not have done so. However, the Full Court was entitled to conclude that the task undertaken by Alhovirta was that described by him and that it required the firing of pins into each side of the joists. It was also entitled to find that the charges were too powerful because the pins penetrated the joists and protruded through the other side. The evidence of Jarvin supported this conclusion. If the Full Court was correct in so finding, it was entitled to find on the basis of his evidence that it was an undesirable practice and that a qualified operator would not have used such powerful charges once he observed that the pins were protruding through the opposite side of the joists. (at p228)

23. The Full Court correctly observed (1980) 49 FLR, at p 240; 33 ALR, at p 210 : "By definition a qualified operator would have been 'over the age of 18 years', 'thoroughly trained in the correct use' of the tool, 'fully instruced as to the dangers associated with explosive tools and the precautions to be taken in respect of them' and would have a 'thorough knowledge' of Pt IXA of the regulations including the provisions of reg. 118E (3) and (5)." As I have said, the Full Court inferred that a person having a thorough knowledge of reg. 118E (3) would have been aware that the explosive powered charges used in such tools varied in strength and that it was important to ensure that a charge was not of greater strength than was necessary. (at p228)

24. For myself I would also have been disposed to infer on the evidence that in firing the gun Alhovirta failed to place the barrel at right angles to the joist so that the steel pin would enter the joist directly at a right angle and not at an oblique angle. Alhovirta in his written statement admitted that the pin penetrated the joist at an angle and that he fired another pin into the hole to block it up. He said that he did so because he was "frightened of" what might happen to him. This, it seems to me, supports the inference that he failed to hold the gun at right angles to the joist when he fired it. (at p228)

25. The inferences drawn by the Full Court were in my opinion correctly drawn on the footing that from the circumstances proved it was reasonable to find on the balance of probabilities in favour of the conclusions reached. Those conclusions were more than mere conjecture or surmise (Luxton v. Vines (1952) 85 CLR 352, at p 358 ; Holloway v. McFeeters (1956) 94 CLR 470, at pp 476-477, 480-481 ).

(2) Did the regulations create a civil cause of action?

(3) Was a breach of reg. 118B (1) (b) the cause of the respondent's injuries? (at p228)

26. These questions can be conveniently considered together. The essence of the decision and of the majority judgments in Leask (1961) 106 CLR 33 was that the plaintiff's injuries were caused by the negligent operation of the crane, not by the crane driver's unlawful act in driving the crane whilst unlicensed or by the employer's unlawful employment of the unlicensed crane driver. The principal judgments were those of Dixon C.J. and Kitto J., with whose judgments Taylor and Windeyer JJ. agreed. (at p229)

27. Dixon C.J. thought that the deceased was killed by the driving of the crane and, that being so, the only question was whether the operation was unlawful and gave rise to a civil cause of action. His Honour observed (1961) 106 CLR, at p 38 :

"No question of causation arises. The sole question is whether when s. 17 (1) or (3) forbids the operation of a crane without a certificate of competency it means that a civil right of action shall arise from the operation of a crane without fulfilment of the condition. After some doubt I have reached the conclusion that it does not do so."

Dixon C.J. acknowledged that the effect of the provisions was to prohibit the operation of a crane unless the driver held a certificate of competency and that "in a general way the purpose of s. 17 in creating the offences" was "to promote safety" (1961) 106 CLR, at p 39 . However, he thought that s. 17 should not be interpreted as creating a private right of action against the driver because it was not to be expected that it was intended to subject him to civil liability. And there was even less reason for subjecting the employer to civil liability because the obligation imposed upon him was secondary only and the civil liability, if it arose at all, would not extend to a person who merely instructed or allowed another to drive a crane without a certificate. (at p229)

28. Kitto J. thought that it was significant that Parliament chose to protect persons from the results of incompetence in the driving of cranes not by requiring owners to restrict the driving of cranes to competent persons but by providing for a government check upon the competence and trustworthiness of drivers by making the holding of a certificate a statutory prerequisition of employment, instruction or permission to drive a power crane (1961) 106 CLR, at pp 44-46 . His Honour said that the holding of a certificate was not the difference between competence and incompetence and that in the ultimate analysis the lack of a causal relation between the want of a certificate by the driver and any injury sustained by a person through the driving of the crane told against the existence of a private right of action. Incompetent driving of the crane causes the injury. Absence of a certificate is not the cause. And if the driver has a certificate his incompetent driving is still the cause of the injury. (at p239)

29. The two judgments reflect the reluctance that has generally been expressed by lawyers and philosophers to identify the want of a licence or a certificate on the part of the driver of a vehicle or the operator of a machine as a cause of an injury resulting from his negligent driving of the vehicle or negligent operation of the machine. See Hart and Honore, Causation in the Law (1959), pp. 111-113; International Encyclopaedia of Comparative Law, vol. XI, Ch. 7 "Causation and Remoteness of Damage", by A. M. Honore, p. 18. Other cases proceed on the footing that if incompetence or unfitness is not an element in the accident, the lack of a licence or certificate is incidental and irrelevant; aliter if unfitness or incompetence is a contributing cause: cf. Kitto J. in Leask. Thus in The Empire Jamaica (1955) P 52 , Willmer J. held that the breach of a Hong Kong Ordinance by the owners of the vessel in employing an uncertificated officer was not a cause of the negligent navigation of the vessel resulting in a collision, the evidence establishing that the officer was competent. (at p230)

30. However, to me it seems that Dixon C.J. was right in thinking that the real question is whether the statute confers a civil cause of action for breach of statutory duty and that the answer to this question is more likely to be obscured if attention is focused on the problem of causation. It may be possible to deduce from the terms of the statute itself a sufficient causal relationship between the breach of duty and the injury sustained by a person within the class that the statute seeks to protect which is less stringent than the causal connexion between negligent act or omission and injury often insisted on in negligence cases. (at p230)

31. Thus, if a statute prohibits a person from operating a dangerous machine unless he holds a certificate of competency, in order to protect the class of persons who might be injured by the operation of the machine, it is evident that the particular object of the provision is to eliminate or diminish the risk of injury due to incompetent operation of the machine by ensuring that it will be operated by those who are competent. Breach of the statutory duty enlarges the risk of incompetent operation of the machine and is in itself a cause which contributes to an injury which is sustained through incompetent operation. In such a situation the problem of causation is not a ground for denying the existence of a civil cause of action. The statute views the breach of duty as a contributing cause because it leads in the particular case to incompetent and therefore negligent operation of the machine. It is therefore not to the point that incompetent operation may be "real" or "effective" cause of the injury, according to traditional legal thinking. (at p231)

32. The practical importance of a statutory provision of this kind is that it provides a foundation for the prima facie presumption that the injury is caused by incompetent operation of the machine when the plaintiff proves that the operator did not hold the requisite certificate. The onus is placed on the defendant of showing that the injury was due to some other cause e.g. by a defect in the machine not discernible by a competent operator. See Atiyah, Accidents, Compensation and the Law, 3rd ed. (1980), pp. 116 et seq.; McGhee v. National Coal Board (1973) 1 WLR 1; (1972) 3 All ER 1008 ; cf.McWilliams v. Sir William Arrol &Co.Ltd. (1962) 1 WLR 295; (1962) 1 All ER 623 . (at p231)

33. Ordinarily a duty imposed by statute to take measures for the safety of others involves a correlative private right, unless from the nature of the provision or from the scope of the legislation a contrary intention appears (O'Connor v. S.P. Bray Ltd. (1937) 56 CLR 464, at p 478 ). No doubt the principle was expressed in these terms so as to exclude the statutory prohibition against driving a motor vehicle without a licence, there having been a reluctance on the part of the courts to accept that such a statutory prohibition creates a private right of action. However, unlike Dixon C.J. and Kitto J. in Leask (1961) 106 CLR 33 , I see no persuasive reason for denying the application of the general principle to a statutory prohibition against a person operating a dangerous machine without a certificate of competency. Likewise, if the statute, again with the object of promoting safety, prohibits persons from employing, instructing or allowing a person to operate the machine unless he holds the requisite certificate, it will generally be held to create a private right of action. I do not share the view of Dixon C.J. in Leask that it is unlikely that Parliament intended to subject individuals to civil liability for employing, instructing or allowing an uncertificated person to operate a machine. Although the prohibition is designed to secure compliance with the primary prohibition, a person who employs or instructs, and in some instances one who allows, an uncertificated person to operate a machine is as much at fault as the operator himself. (at p231)

34. The critical provision in this case, reg. 118B (1) (b), is rather different in form. It prohibits a person from employing, instructing or allowing a person to operate a power-operated tool unless he is of the requisite age, has been suitably instructed and has a knowledge of the regulations. It imposes a duty on the employer to make appropriate inquiry and to satisfy himself that the operator is qualified in these respects. The imposition of this duty, more stringent than that imposed on the employer in Leask is a further reason for concluding that the regulation creates a civil right of action on the part of the injured person against the employer. Accordingly, the Federal Court was correct in holding that the appellant was liable for breach of statutory duty.

Negligence. (at p232)

35. The findings that Alhovirta caused the injury by firing the gun when the respondent was in front of him, contrary to the regulation, and by using a charge which, from the result of the previous shot fired, he had reason to believe might be too powerful, necessarily lead to the conclusion that Alhovirta was negligent, his breach of the regulations being evidence of negligence. This in turn involves the appellant in liability either because it was directly liable for failing to adopt and maintain a safe system of work or because it was vicariously liable for the acts and omissions of its employee Alhovirta. (at p232)

36. In the result I would dismiss the appeal. (at p232)

Murphy J. The plaintiff was seriously injured by being shot through the head by a projectile from an explosive powered tool which the operator was allowed to use by the defendant in breach of reg. 118B (1) (d) of the Scaffolding and Lifts Regulations made under the Scaffolding and Lifts Act 1912-1948 (N.S.W.). This applies in the Australian Capital Territory by virtue of the Scaffolding and Lifts Ordinance 1957. The regulation applies to use of explosive-powered tools (see reg. 118A) and provides:
"No person shall employ, instruct or allow any person to use a tool in any work without first ensuring by proper enquiry that such person is a qualified operator and is not by reason of any infirmity, disability or incapacity unfit to use such tool."
This is a safety measure for the protection of persons who might be injured by the use of an explosive-powered tool. It is, unless the conditions are fulfilled, an absolute prohibition on allowing the use of the tool. Breach of such a safety measure gives rise to a civil action for damages (O'Connor v. S.P. Bray Ltd. (1937) 56 CLR 464 ; Jacob v. Utah Construction and Engineering Pty. Ltd. (1966) 116 CLR 200 ). (at p232)

2. The regulation is not very different from that in Leask Timber and Hardware Pty. Ltd. v. Thorne (1961) 106 CLR 33 , which, in my opinion, was wrongly decided and should be overruled. In that case the Scaffolding and Lifts Act 1912 (N.S.W.) s. 17 forbade the defendant employer from allowing the driving of a power crane except by a holder of a certificate of competency. McTiernan J.'s dissenting judgment holding that the regulation raised a right of action for damages was correct. In general, if as a safety or health measure, use of a machine or procedure is forbidden, either absolutely, or unless certain conditions are fulfilled, then breach raises a civil cause of action. There is strict liability for damage caused by the prohibited use.

Causation. (at p233)

3. A causal connexion is shown by proof that the damage was caused by the prohibited use of the machine or procedure. In this case it is shown by use of the tool although a condition, on which the prohibition is relaxed, was not fulfilled. The causal connexion is demonstrated by damage caused by the use of the tool. It is irrelevant whether there was negligence. The cause of action is for breach of statutory duty, not for negligent breach of statutory duty. The proper inquiry is whether the injury was caused by the use of the tool, not whether it was caused by negligent or incompetent use of the tool. In Leask's case, Dixon C.J. (with whom Taylor J. agreed) adopted this approach to causation in an action for breach of statutory duty, when he said (1961) 106 CLR, at p 38 , "Plainly, as it seems to me, the death is caused by the driving of the crane" (see also Windeyer J. (1961) 106 CLR, at p 47 ). (at p233)

4. The appeal should be dismissed. (at p233)

AICKIN J. I do not need to set out the relevant facts and legislation upon which the appeal depends. They are fully stated in other judgments. (at p233)

2. There are two bases upon which the respondent claims to be entitled to retain the judgment directed by the Full Court of the Federal Court to be entered in his favour. The first is that his injury was caused by a breach of statutory duty imposed on the appellant by the Scaffolding and Lifts Ordinance 1957 (A.C.T.) which incorporated, with some modifications, the provisions of the Scaffolding and Lifts Regulations (N.S.W.) made pursuant to the Scaffolding and Lifts Act, 1912-1948 (N.S.W.). (at p233)

3. The second basis is that his injury was caused by the negligence of a fellow employee in the handling of a power tool known as a Ramset gun. (at p233)

4. I do not find it necessary to consider whether there was a breach of statutory duty, though I do not dissent from the view expressed on that point by Mason J. and Brennan J. in their reasons for judgment. (at p234)

5. It is in my opinion clear that the employee who operated the Ramset gun acted without proper care in the use of the gun in the course of his employment, even if he had been properly trained in its use. He was not in fact a qualified operator and his employer failed to ensure that he was properly qualified. His evidence was that in the brief "training" which he had received he was instructed not to fire the gun when there was anyone in front of him, i.e. in front of the place where he was standing for the purpose of using the gun. The plaintiff was in front of the place where the employee was about to use the gun. Although the employee asked the plaintiff to move behind him the plaintiff moved only towards one side and not behind the employee with the gun. That employee then fired the gun in contravention of his instructions and that caused injury to the plaintiff. In my opinion that constituted negligence by that employee for which his employer was liable. It was a clear failure to observe a safety precaution which he had been expressly instructed to follow. For that negligence the employer was legally responsible. (at p234)

6. I am therefore of opinion that the appeal should be dismissed. (at p234)

WILSON J. I have had the advantage of reading the reasons for judgment prepared by Mason J. The facts of the case and the issues involved in the appeal are there set out. (at p234)

2. I agree in his Honour's conclusion that the evidence was sufficient to sustain, on the balance of probabilities, the inference that the respondent received his injury as a result of the discharge by Alhovirta of the Ramset gun. I agree entirely in the reasons advanced for that conclusion. (at p234)

3. With regard to the remaining issues, I find it sufficient for the resolution of the appeal to say that I agree with the Federal Court that the provisions of reg. 118B (1) (b) of the Scaffolding and Lifts Regulations are distinguishable from the statutory provisions which were the subject of the decision of this Court in Leask Timber and Hardware Pty. Ltd. v. Thorne (1961) 106 CLR 33 . For myself, I do not think that the correctness of the decision in that case is raised for consideration. It was a decision limited to its particular facts, and did not purport, as did O'Connor v. S.P. Bray Ltd. (1937) 56 CLR 464 , to enunciate any principle of general application. It will be seen, from the regulations cited by Mason J. that the statutory duty which in the present case was alleged to have been breached by the appellant was a duty not to employ, instruct or allow any person to use an explosive-powered tool without first ensuring by proper enquiry that such person is a qualified operator. A qualified operator is a person who -
"(a) is over the age of eighteen years;
(b) has been thoroughly trained in the correct use, adjustment, assembly and taking apart of explosive-powered tools; (c) has been fully instructed as to the dangers associated with explosive-powered tools and the precautions to be taken in respect of them; and (d) has a thorough knowledge of this Part of these Regulations." These detailed provisions are clearly and unequivocally directed to securing the safety of persons from the irresponsible and incompetent handling of such tools. (at p235)

4. The contrast between this provision and that which was under consideration in Leask is pointed up by the discussion of the latter by Kitto J. in his judgment (1961) 106 CLR, at p 44
"If it had prescribed safety measures to be observed in the driving of power cranes, either specifically indentifying the measures or, as in Butler (or Black) v. Fife Coal Co. Ltd. (1912) AC 149 requiring in general terms the observance of due care and diligence, the conclusion might not be difficult that, by making compulsory the measures so described, the statute by implication created correlative private rights to have them observed. But s. 17 (3) makes nothing compulsory save the holding by the driver of a certificate of competency. The legislature, in enacting this particular provision, has elected not to address itself to the topic of the taking of precautions in the interests of persons whom the driving of power cranes might endanger. The protection of such persons from the results of incompetency or untrustworthiness in the driving of power cranes is, clearly enough, the ultimate objective by reference to which the enactment of the provision is to be explained in terms of legislative policy. But the legislature has chosen to serve the end in view, not by requiring crane-owners to restrict the driving of cranes to competent and trustworthy persons, but by providing for a governmental check upon the competency and trustworthiness of drivers and, in order to render the check effective, making the holding of a certificate as to the result a statutory prerequisite of employment, instruction or permission to drive a power crane. . . . It is impossible to maintain as propositions of fact that until he gets his certificate he is incompetent or untrustworthy, and that the grant of the certificate makes him competent and trustworthy." (at p236)

5. In my opinion, therefore, a breach of the regulation exposes the offender to civil action at the suit of a person who thereby suffers injury. (at p236)

6. In holding an employer liable for breach of a statutory duty it is not necessary for the injured worker to establish more than that on the balance of probabilities his injury resulted from the unlawful act or omission, in this case the discharge of the Ramset gun by an unqualified operator. Although the existence of civil liability will often depend in the first place on the close correspondence between the statutory duties imposed on an employer and the duties with respect to safety resting on him under the common law relating to negligence (see O'Connor v. S.P. Bray Ltd., per Dixon J (33)) the proof of negligence forms no element in establishing the claim. It is sufficient, therefore, in order for the respondent to succeed in his claim for it to be established that he was injured through the unlawful operation by Alhovirta of the gun, whether or not that operation was negligent. Of course, as Mason J. observes, the evidence in this case establishes that in any event the respondent is entitled to recover damages in negligence. (at p236)

7. I would dismiss the appeal. (at p236)

BRENNAN J. The respondent, then an apprentice carpenter, was injured when a drive pin fired from a Ramset gun on a building site near Canberra penetrated his forehead. The gun was fired by his workmate, a young man named Alhovirta, who was fixing some wooden battens to a steel joist fabricated in the shape of an H. The battens were two inches square in cross-section, and the drive pins were three inches long. A batten was fixed to the crossbar of the steel joist by firing a drive pin through the batten so that the drive pin penetrated the joist; then another batten was similarly fixed to the other side of the joist. There was no evidence as to the distance which a drive pin ought to penetrate through the steel, but there were charges of different strengths which might be used to impart to a drive pin greater or less power to penetrate. Although other drive pins fired on the morning of the accident had been effective to fix battens to their joists, the drive pin which caused the injury passed completely through the batten and the joist and emerged with sufficient velocity to penetrate the respondent's skull. (at p236)

2. The respondent sued for damages in the Supreme Court of the Australian Capital Territory alleging negligence and breach of statutory duty against his employer and against Alhovirta's employer, the two defendants. Blackburn C.J. found that at the time of the accident the respondent's employer, the present appellant, had been lent the services of Alhovirta, that it was then Alhovirta's master and that it was vicariously liable for any negligence of which Alhovirta was guilty. His Honour gave judgment for the appellant, however, holding that the respondent had not proved either that Alhovirta had been negligent or in breach of statutory duty or that the appellant had caused the respondent's injuries by its negligence or its breach of statutory duty. On appeal to the Federal Court of Australia, it was held that the appellant had breached reg. 118B (1) (b) of the Scaffolding and Lifts Regulations (N.S.W.) which was in force in the Territory by virtue of s. 7 of the Scaffolding and Lifts Ordinance 1957, that the breach was a probable cause of the present respondent's injury, and that the breach was also a particular of negligence which was a cause of the same injury. Accordingly, the Federal Court set aside the judgment of the Supreme Court, and in lieu thereof ordered that judgment be entered for the present respondent for $118,982.35, the damages assessed by the trial judge, and costs. From that judgment and order this appeal is brought. (at p237)

3. Regulation 118B is to be found in Pt IXA of the Regulations, a Part which applies to the use of explosive-powered tools in building work (reg.118A (1)). The relevant provisions of Pt IXA are set out in the judgment of Mason J. and I need not repeat them. For present purposes, the more important provisions are the definition of "qualified operator" in reg. 118A (2), the prohibition in reg. 118B (1) (a) against the use of an explosive-powered tool by a person who is not a qualified operator and the prohibition in reg. 118B (1) (b) against the employment or allowing of a person to use an explosive-powered tool without ensuring by proper inquiry that that person is, inter alia, a qualified operator. Alhovirta was not a qualified operator: he was only seventeen at the time of the accident, he had not been thoroughly trained in the correct use of the gun, he had not been fully instructed as to the dangers associated with the gun and he had no knowledge of the regulations applying to its use. (at p237)

4. Although the learned trial judge found that the appellant had been guilty of a breach of the duty imposed by reg. 118B (1) (b), he thought that it was an untenable proposition that the respondent's injury was legally due to the fact that the appellant had allowed Alhovirta to use the gun without first ensuring by enquiry that he was qualified. And his Honour's further finding that there was a failure to take adequate precautions for the respondent's safety in allowing Alhovirta to take and fire the gun did not avail the respondent, for his Honour did not find that there was any causal relationship between that failure and the respondent's injuries. (at p238)

5. The evidence describing the accident was sketchy. In his evidence Alhovirta said that, before he fired the gun, he had seen the respondent in front of him. His evidence proceeded :

"Did you do anything about that? . . . Yes, I asked him if he could possibly move behind me. Did he move? . . . He moved slightly to one side and then - what must have appeared safe to him and said I could go ahead and fire. What happened after that? . . . I looked over towards John after I fired and I saw blood coming from his forehead and I hopped down from the position I was, moved over to John passed him my handkerchief and said, 'What happened?' . . .

How far below you was he when you fired the shot? . . . As far as I can remember it would be several - three feet possibly, three feet." (at p238)

6. Alhovirta had made a statement a week after the accident, and the learned trial judge was inclined to prefer that statement over Alhovirta's evidence at the trial. In the statement Alhovirta said that he had loaded the tool with a three inch drive pin and a red charge, which is a strong charge, put the block of wood in position and then pushed down the shield on the tool flat onto the wood and pulled the trigger. Then he happened to look over towards where the respondent was standing, about 15 ft away on the lower section of the roof, and saw blood coming from his head. The statement reads in part:

"Before firing the tool I called out to John to move back behind me out of the direction in which the tool was pointing as I had been taught to do. I am not sure of what actually happened but it would appear that the drive pin after striking the steel girder had ricocheted and struck John in the head.

As I was frightened of what may happen to me since I had never been involved in this sort of thing before, I later went back to where the accident happened and noted that the hole left by the drive pin was at an angle so I put another drive pin into the same hole." (at p238)

7. The learned trial judge found that the drive pin had passed through the batten and joist obliquely, but his Honour declined to find that the direction in which Alhovirta had held the gun when he fired it "was foreseeably dangerous to the plaintiff", in the absence of evidence as to the predictability of the flight of the drive pin through the material into which it is driven. However, in their joint judgment in the Federal Court, Connor, Evatt and Keely JJ. said (1980) 49 FLR, at pp 240-241; 33 ALR, at p 211 :

"The learned trial judge was plainly placed in a difficult predicament by reason of the lack of evidence on many aspects of this matter. Even so, we think that there was sufficient evidence that the action of the first respondent in permitting Alhovirta to use the Ramset gun was a probable cause of the appellant's injury. We think it unlikely that a qualified operator, aware of his obligation to take the utmost care for the safety of the appellant, seeing the appellant in front of him and asking him to move behind him, would have proceeded to fire the gun after the appellant had moved only slightly to one side. We think it unlikely, if a qualified operator had been using the tool, that the nail would have gone through the wood and steel as it did. By permitting an inexperienced unqualified apprentice to use the gun, instead of a qualified operator, the first respondent in our view greatly increased the risk of the appellant receiving injury from a projectile from the Ramset gun; and the appellant suffered just such an injury."

This comparison between what a qualified operator was likely to have done and what Alhovirta did led their Honours to conclude that the appellant's breach of statutory duty contributed to the respondent's injury. In my view, the Federal Court was right in finding that the appellant's breach of reg. 118B (1) (b) caused the respondent's injuries, though the test which their Honours applied was inappropriately stringent. Regulation 118B (1) (b) prohibited the appellant from allowing any use of an explosive-powered tool by Alhovirta, but in contravention of the prohibition the appellant employed or allowed Alhovirta to use the Ramset gun, Alhovirta fired it and by that use of the Ramset gun the respondent was injured. Those were the relevant and sufficient links in the chain of causation, and the respondent was entitled to recover damages against the appellant for breach of statutory duty if an implication arises from reg. 118B (1) (b) that persons injured by its breach should have a private right of action for damages. (at p239)

8. The appellant submits that no private right of action is conferred by reg. 118B (1) (b) and relies upon the reasons given in the judgments in this Court in Leask Timber and Hardware Pty. Ltd. v. Thorne (1961) 106 CLR 33 . In that case, there was a demurrer to a count in a declaration in an action brought under the Compensation to Relatives Act 1897-1953 (N.S.W.) by a widow suing in respect of her husband's death. It was alleged that his death was occasioned by injuries sustained by the working of a power crane while it was being driven by an uncertificated driver employed by the defendant in contravention of s. 17 of the Scaffolding and Lifts Act 1912-1948 (N.S.W.) which prohibited uncertificated drivers from driving power cranes (sub-s.(1)) and prohibited any person from employing or allowing an uncertificated driver to drive a power crane (subs. (3)). The demurrer was allowed on the ground that s. 17 did not create a private right of action for damages for its breach. (at p240)

9. Kitto J., with whom Taylor and Windeyer JJ. agreed, held that sub-s. (3) confered no private right to recover damages for breach of the sub-section because there could be no causal relation "between on the one hand, the lack of a certificate on the part of a person who is allowed to drive a power crane and, on the other hand, an injury sustained through the driving of the crane by that person". Axiomatically, if a breach of a statutory provision is incapable of causing damage, the statute cannot give rise to an implication that there is a private right to recover damages for its breach. In Leask Timber Kitto J. construed s. 17 not as restricting the driving of power cranes to competent and trustworthy persons - an appropriate precaution to safeguard those whom the driving of cranes might endanger - but as providing for a governmental check upon the competency and trustworthiness of drivers. Sub-section (3) was held to provide for "proof of a person's competence and trustworthiness to the satisfaction of officers of the government before the person may be allowed to drive a power crane. It is impossible to maintain as propositions of fact that until he gets his certificate he is incompetent or untrustworthy, and that the grant of the certificate makes him competent and trustworthy". (1961) 106 CLR, at p 45 . But the prohibition against allowing a person who is not a "qualified operator" to use an explosive-powered tool is not a mere licensing provision. By incorporating the definition of "qualified operator" in reg. 118B(1), the prohibitions contained in that provision are made to depend upon the operator's immaturity of years, inexperience or ignorance. A person is prohibited from using a Ramset gun, and another person is prohibited from employing, instructing or allowing him to use such a gun if he is not over the age of eighteen, if he has not been thoroughly trained in the use of explosive-powered tools, if he has not been fully instructed as to the dangers associated with their use and as to the precautions to be taken with respect to them or if he does not have a thorough knowledge of Pt IXA of the Regulations. The regulation is not concerned with the licensing of operators; it is concerned with preventing use of explosive-powered tools by operators who are not sufficiently mature, or sufficiently trained or sufficiently knowledgeable to be entrusted with so dangerous a tool. (at p241)

10. Apart from the regulation, the common law exacts a duty of care from persons who have control of dangerous things (Adelaide Chemical and Fertilizer Co. Ltd. v. Carlyle (1940) 64 CLR 514 ), more extensive as to the persons to whom the duty is owed and more exacting as to the degree of care to be taken than in the case of things which are not dangerous (Donoghue v. Stevenson, per Lord Atkin (1932) AC 562, at p 596 ). That duty requires a person in control of a gun, which is a dangerous thing, to take care as to the persons whom he allows to use the gun: see Dixon v. Bell (1816) 5 M &S 198 (105 ER 1023) ; Burfitt v. A. and E. Kille (1939) 2 KB 743 ; Gorely v. Codd (1967) 1 WLR 19; (1966) 3 All ER 891 . (at p241)

11. The duty of care imposed by the general law is a duty to act reasonably to avoid the risk of causing foreseeable damage to another; and so, a person in control of a gun ought not to entrust it to an incompetent or untrustworthy person who is not unlikely to use the gun incompetently or in an untrustworthy manner and thereby cause injury or loss. If injury or loss is caused by his use of the gun incompetently or in an untrustworthy manner, the person who allowed him to use the gun is respnsible because the risk against which the latter was bound to guard has materialized. But if the incompetence or untrustworthiness of the person who is allowed to use the gun plays no part in causing injury or loss, the risk against which the person who had control of the gun is bound to guard against does not materialize, and any injury or loss occasioned by its use is not causally related to a failure on the part of that person to take due care in allowing the other person to use it. The responsibility of the person who had control of the gun for breach of his duty to take due care in allowing another to use it is to be distinguished from any vicarious responsibility for that other's negligence in its use (cf. Smith v.Leurs (1945) 70 CLR 256, at pp 261-262 ), and his liability under the former head for damage done by the other's use of the gun is measured by reference to the risk against which he is bound to guard. His duty of care is a thing written on the wind unless damage is caused by the breach of that duty; there is no actionable negligence unless duty, breach and consequential damage coincide (Overseas Tankship (U.K.) Ltd. v. Morts Dock &Engineering Co. Ltd. ("The Wagon Mound") (No. 1) (1961) AC 388, at p 425 ). For the purposes of determining liability in a given case, each element can be defined only in terms of the others. Thus, in the present case, the respondent could establish a relevant breach of the appellant's duty under the general law only by showing that the respondent's injury is to be attributed to Alhovirta's incompetence or untrustworthiness in using a Ramset gun, for it was not unlikely that his incompetence or untrustworthiness would cause injury if he used the gun, and that was the risk against which it was the appellant's duty to guard. But the learned trial judge's inability to determine how Alhovirta's conduct occasioned the respondent's injuries precluded his finding that those injuries were caused by any incompetence or untrustworthiness on Alhovirta's part and thus precluded his finding that the appellant was in breach of its duty under the general law in its allowing Alhovirta to use the Ramset gun. (at p242)

12. The risk in allowing an unqualified operator to use an explosive-powered tool no doubt accounts for the making of reg. 118B (1), but the duty imposed by reg. 118B (1) (b) and the consequences of its breach are not modified by considerations of risk of improper handling. Subject to sub-reg. (2), which is presently irrelevant, the prohibition against allowing an unqualified operator to use an explosive-powered tool is absolute, and to allow any use of the tool by an unqualified operator is a contravention of the prohibition. Where an unqualified operator has been allowed to use the tool in contravention of reg. 118B (1) (b), and in using it he causes injury or loss, there is a clear casual relationship between the damage and the contravention. As a contravention of reg. 118B (1) (b) is capable of causing damage, the regulation is distinguishable from the provision in question in Leask Timber (1961) 106 CLR 33 . (at p242)

13. In prescribing a specific precaution to be taken by a person who has control of a Ramset gun, reg. 118B (1) (b) adds to the duty imposed by the general law; it imposes a duty not to allow an unqualified operator any use of the Ramset gun, not merely a duty to guard against the risk of his using it in a careless or improper manner. Nor is reg. 118B (1) (b) restricted to guarding against the risk that the unqualified operator may cause damage by manifesting immaturity of years, inexperience or ignorance in his use of the tool; it forbids the running of any such risk. By contrast, Kitto J. considered that s. 17 of the Scaffolding and Lifts Act neither added to nor subtracted from the common law duty to take reasonable care for the safety of persons imperilled by the use of a power crane. Regulation 118B (1) (b) thus falls within the principle expressed by Dixon J. in O'Connor v. S.P. bRAY Ltd. (1937) 56 CLR 464, at p 478 :
". . . I think it may be said that a provision prescribing a specific precaution for the safety of others in a matter where the person upon whom the duty laid is, under the general law of negligence, bound to exercise due care, the duty will give rise to a correlative private right, unless from the nature of the provision or from the scope of the legislation of which it forms a part a contrary intention appears. The effect of such a provision is to define specifically what must be done in furtherance of the general duty to protect the safety of those affected by the operations carried on." (at p243)

14. The second reason for allowing the demurrer in Leask Timber appears in the judgment of Dixon C.J. and turned upon the structure of s. 17. His Honour concluded after some doubt that s. 17 did not confer a civil right of action because the persons who would have been liable in damages for injuries occasioned by the driving of a power crane included not only the employer of the driver of the power crane but the driver himself and the employer's subordinates and all others who instructed or allowed the uncertificated driver to drive the power crane. His Honour observed (1961) 106 CLR, at p 39 : "One would not expect the actual driver to be placed in the position of being subject to civil liability for the consequences of his offence." Whatever may be said about a section forbidding the driver of a power crane by an uncertificated driver, there is no reason for denying to a person injured by the firing of an explosive-powered tool a right to sue for damages for breach of statutory duty when the duty not to use or to allow the use of the tool is imposed because the user lacks the age, experience or knowledge which the regulation demands. In contrast with the view taken by Dixon C.J. of s. 17 in Leask Timber one might well expect the unqualified operator of an explosive-powered tool to be subject to civil liability for the consequences of his contravention of the prohibition against his using the gun. (at p243)

15. Regulation 118B (1)(b) is structurally and in operation distinguishable from the provision considered in Leask Timber. It is an important safeguard for those on building sites designed to minimize the risk of careless or improper handling of a dangerous tool. As the regulation simply prohibits allowing any use by an unqualified operator of an explosive-powered tool, it is immaterial to liability for breach of statutory duty whether the damage caused by the unqualified operator's use of the tool would have been caused if he had handled the tool in a different fashion. If his use of the tool causes damage, the person who allowed him to use it in contravention of reg. 118B (1)(b) is liable. (at p244)

16. It follows that the respondent was entitled to recover damages from the appellant for its breach of statutory duty in allowing Alhovirta to use the Ramset gun. It is immaterial that the learned trial judge was unable to determine whether the respondent's injury was caused by some incompetence or untrustworthiness in Alhovirta's use of the gun. The view of the Federal Court that it was unlikely that the accident would have happened if a qualified operator had been using the Ramset gun is not essential to the validity of the conclusion that the respondent was entitled to judgment against the appellant. (at p244)

17. I would dismiss the appeal with costs. The application for special leave to cross appeal should stand over until the appeals in Todorovic v. Waller and Jetson v. Hankin are determined. (at p244)

Orders

Appeal dismissed with costs.

Respondent's application for special leave to cross-appeal stood over generally with liberty to either party to restore to the list on seven days' notice.