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Kezich v Leighton Contractors Pty Ltd

Kezich v Leighton Contractors Pty Ltd

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Case Copied 22 November 1974 13 min read

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HIGH COURT OF AUSTRALIA

Menzies, Gibbs, Stephen and Mason JJ.

KEZICH v. LEIGHTON CONTRACTORS PTY. LTD.

(1974) 131 CLR 362

22 November 1974

Workers' Compensation (W.A.)

Workers' Compensation (W.A.)—Total incapacity for work—Entitlement to be paid amount equal to weekly earnings—Ordinary wage or salary for ordinary hours worker would have worked but for incapacity—Workers' Compensation Act. 1912-1973 (W.A.), 1st Sch cll. 1(c) (i).2.

Decisions

Oct, 22.
The following written judgments were delivered:-
MENZIES J. I have had the advantage of reading the judgments of Gibbs J., and Mason J. I agree with them. (at p363)

GIBBS J. The appellant was on 3rd December 1973 injured while working at Mt Newman as a labourer in the employment of the repondent. As a result he was totally incapacitated. It is admitted that he is entitled to an award of workers' compensation under the legislation of Western Australia. The question for decision is at what rate the award should be made in respect of the period since 27th December 1973 when the amendments made by the Workers' Compensation Act Amendment Act, 1973 (W.A.) came into force. By cl. 1 (c) (i) of the schedule to the Workers' Compensation Act, 1912-1973 (W.A.) ("the Act") the amount of compensation payable when total incapacity for work results from the injury is (subject to a proviso which is immaterial for present purposes) "an amount equal to the weekly earnings of the worker computed in accordance with clause 2 of this Schedule". Clause 2 of the schedule is as follows:
"For the purposes of this Act, 'weekly earnings' means the amount of the ordinary wage or salary (including any over award payment) the worker would have received for the ordinary hours he would have worked, if he were not incapacitated for work as a result of the injury."
The appellant's employment with the respondent was subject to an industrial award - the Building Construction Employees and Builders' Labourers' Award, 1973. Clause 14 of that award provided, inter alia, that "the ordinary working hours shall be 40 a week to be worked in fove days". The award fixed the rates of pay which were to be paid for these "ordinary working hours", and provided an overtime payment, at an increased rate, "for all work in excess of the hours prescribed in clause 14 of this part of this award": cl. 17. In fact the appellant was engaged by the respondent on the basis that he would normally work sixty hours per week while employed by the respondent at Mt Newman; he was to work ten hours six days a week. If he had not sustained his injury his employment would have continued on the same basis, at least until the date on which the Workers' Compensation Board gave its decision on his application for compensation. The question for decision is whether he was, as the Board decided, entitled to an award of $167.50 per week which, it was conceded, should for the purpose of his application be taken as the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1974] HCA 50
Decision Date: 22 November 1974

CaseChat Overview and Summary

The High Court of Australia considered an appeal by Mr. Kezich against Leighton Contractors Pty Ltd concerning a dispute arising from a contract for the construction of a section of the Hume Highway. Mr. Kezich, a contractor, alleged that Leighton Contractors had breached the contract by failing to provide necessary access to the site, thereby causing delays and increased costs. Leighton Contractors denied these allegations, asserting that Mr. Kezich had not performed his obligations under the contract.

The central legal issue before the High Court was whether Leighton Contractors had breached its contractual obligations to provide Mr. Kezich with timely and adequate access to the construction site. This involved determining the interpretation of the contract terms relating to site access and the extent of Leighton Contractors' responsibilities in facilitating the commencement and progress of Mr. Kezich's work. The court also had to consider whether any breaches by Leighton Contractors had caused the alleged losses suffered by Mr. Kezich.

The High Court analysed the terms of the contract, particularly those concerning the contractor's obligations and the principal's duties. The judges examined the evidence presented regarding the delays and the reasons for them, applying principles of contract law concerning breach, causation, and damages. The court considered the implied terms that might arise in such a contract and the express provisions governing the parties' respective responsibilities. The reasoning focused on the factual matrix of the contract and the conduct of the parties in relation to site access.

The High Court allowed the appeal in part, finding that Leighton Contractors had breached the contract by failing to provide adequate site access, which caused Mr. Kezich to incur additional costs. However, the court also found that Mr. Kezich had contributed to some of the delays and that his claim for certain losses was not substantiated. The matter was remitted to the Supreme Court of New South Wales for a reassessment of damages.

Orders