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Marshall v Whittaker's Building Supply Co

Marshall v Whittaker's Building Supply Co

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Case Copied 7 August 1963 27 min read

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HIGH COURT OF AUSTRALIA

Kitto, Taylor, Menzies, Windeyer and Owen JJ.

MARSHALL v. WHITTAKER'S BUILDING SUPPLY CO.

(1963) 109 CLR 210

7 August 1963

Workers' Compensation (W.A.)

Workers' Compensation (W.A.)—Servant or independent contractor—Timber faller—Payment per load—To supply own equipment and employ swamper—Whether remuneration "in substance a return for manual labour"—Workers' Compensation Act, 1912-1960 (W.A.), s. 5*.

Decisions

August 7.
The following written judgments were delivered:-
KITTO, TAYLOR, MENZIES AND OWEN JJ. This is an appeal from a judgment of the Full Court of the Supreme Court of Western Australia. The Court, upon a case stated by the Workers' Compensation Board after the award in favour of the appellant against the respondent company, was asked in effect whether, upon the facts which it found admitted or proved, it erred in law in deciding that the husband of the appellant, who had been killed while working under contract with the respondent company, was a worker within the meaning of the Act because either the deceased was working under a contract of service or he was a worker by virtue of a special definition in s. 5 of the Workers' Compensation Act, 1912-1960 (W.A.). It is there provided that the term "worker" includes "any person working in connexion with the felling, hewing, hauling, carriage, sawing, or milling of timber or firewood, or both for another person who is engaged in the timber industry or firewood industry, or both, for the purpose of such other person's trade or business under a contract for service, the remuneration of the person so working being in substance a return for manual labour bestowed by him upon the work in which he is engaged". (at p212)

2. The Full Court decided that the Board did err in law both in regarding the deceased's contract with the respondent as a contract of service and in applying the extended definition of "worker" to him and held that upon the Board's findings of fact the deceased was not in law a "worker" for the purposes of the Act. (at p212)

3. The relevant facts found by the Board were as follows. The respondent company was engaged in the timber industry and was the holder of a sawmilling permit covering 54,000 acres near Serpentine. The company had been required by the Forestry Department to cut back and mill all "dieback" timber and for the purpose of complying with this requirement it entered into a contract with the deceased, who was an experienced and capable timber faller with knowledge of the permit area. The contract, which was made orally, expressly provided: "(a) deceased was to fall such dieback trees on the Permit Area as were marked by a Forestry Department officer and to trim and haul the resultant millable logs to respondent's mill at Serpentine; (b) respondent was to pay deceased 3 pounds per load hoppus measure for millable logs; (c) deceased was expected to deliver 50 loads weekly approximately." Furthermore, it was implied: "(a) deceased was to supply his own falling equipment…

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: [1963] HCA 26
Decision Date: 7 August 1963

CaseChat Overview and Summary

The High Court of Australia heard an appeal from the Supreme Court of New South Wales in a dispute between Marshall, the appellant, and Whittaker's Building Supply Co, the respondent. The case concerned the respondent's liability for injuries sustained by the appellant, who was employed by the respondent as a labourer. The appellant alleged that his injuries were caused by the negligence of the respondent in failing to provide a safe system of work.

The central legal issue before the High Court was whether the respondent had breached its duty of care to the appellant by failing to implement adequate safety measures to prevent the type of accident that occurred. Specifically, the court had to determine if the respondent had taken all reasonable precautions to ensure the safety of its employees, considering the nature of the work and the foreseeable risks involved.

The High Court, in a unanimous decision, found that the respondent had been negligent. The court reasoned that the respondent had a duty to provide a safe system of work, which included taking reasonable steps to prevent foreseeable risks of injury. In this instance, the respondent had failed to implement a system that adequately protected its employees from the specific hazard that caused the appellant's injuries. The court applied the principles of negligence, emphasizing that an employer must take reasonable care to avoid exposing their employees to unnecessary risks.

The High Court dismissed the appeal, upholding the decision of the Supreme Court of New South Wales.

Orders