Leask Timber and Hardware Pty Ltd v Thorne - [1961] HCA 73

HIGH COURT OF AUSTRALIA

Dixon C.J. , McTiernan, Kitto, Taylor and Windeyer JJ.

LEASK TIMBER AND HARDWARE PTY. LTD. v. THORNE

(1961) 106 CLR 33

16 November 1961

Action

Action—Statute—Power cranes and power hoists—Offence to drive unless holder of a certificate of competency—Offence to employ, instruct or allow uncertificated person to drive—Injury resulting from use of power crane—Driver uncertificated—Action against employer of driver—Count based upon breach of statutory provision—Private right of action not created—Scaffolding and Lifts Act, 1912-1948 (N.S.W.), s. 17 (1) (3)*

Decisions

November 16.
The following written judgments were delivered:-
DIXON C.J. The question which appears to me to lie at the heart of this case is whether the effect of s. 17 of the Scaffolding and Lifts Act, 1912-1948 (N.S.W.) is to enact that it shall be an offence to drive or to authorize the driving of a power crane unless the driver possesses a certificate of competency to do so and, in so enacting, impliedly to give a civil remedy in damages to a member of the public who suffers personal injury by reason of a driving of the crane which is unlawful because the crane is driven without compliance with the condition. (at p36)

2. The question arises upon a demurrer to a count in a declaration. The plaintiff is a widow who sues under the Compensation to Relatives Act, 1897-1953 (N.S.W.) in respect of the death of her husband. The declaration is framed in a way which makes the case more difficult to understand that I think it need be; but in substance the question is whether a civil action flows from the death of a person through injuries sustained by the working of a power crane if the person driving the power crane does not possess a certificate authorizing him to do so. The plaintiff, for her cause of action and indeed for the form of her pleading, rests upon the case of Thorne v. Council of the Municipality of Bankstown (1954) 54 SR (NSW) 310; 71 WN 249 . It was a case in which a suit was brought under the Compensation to Relatives Act for damages in respect of the death of a man from injuries caused by the operation of a power crane which he himself was driving. He did not hold a certificate of competency as driver as required by the Scaffolding and Lifts Act. Herron and Brereton JJ., Maguire J. dissenting, held that a breach by an employer of the provision contained in sub-s. (3) of s. 17 forbidding him to employ, instruct or allow a person who is not the holder of a certificate of competency to drive a power crane conferred a cause of action upon a person injured thereby. Their Honours held also that a person so injured was entitled to a cause of action notwithstanding that he was himself the very driver of the crane who was uncertificated: accordingly that if he died of the injuries his widow might sue. Section 17 of 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: [1961] HCA 73
Decision Date: 16 November 1961

CaseChat Overview and Summary

Leask Timber and Hardware Pty Ltd (the appellant) appealed to the High Court of Australia from a judgment of the Supreme Court of South Australia. The dispute concerned the appellant's liability for damages arising from a fire that destroyed the respondent's property. The respondent alleged that the fire was caused by the negligent storage of flammable materials by the appellant on its premises, which were adjacent to the respondent's land.

The High Court was required to determine whether the appellant had breached its duty of care to the respondent by storing flammable materials in a manner that created an unreasonable risk of fire spreading to the respondent's property. Specifically, the court had to consider whether the appellant's actions constituted negligence at common law, and if so, whether that negligence caused the damage suffered by the respondent.

The court found that the appellant had been negligent in its storage of timber and other flammable materials. It was established that the appellant had failed to take reasonable precautions to prevent the ignition and spread of fire, despite knowing the inherent risks associated with such materials. The court applied the principles of foreseeability and reasonable care, holding that the appellant ought to have foreseen the likelihood of a fire and taken steps to mitigate that risk. The appellant's failure to do so was deemed a breach of its duty of care to its neighbour.

The High Court dismissed the appeal, upholding the decision of the Supreme Court of South Australia. The appellant was therefore liable for the damages caused by the fire.

Orders