O'Connor v S P Bray Ltd

The appellant, Cornelius O'Connor, an employee of the respondent, S. P. Bray Ltd., sustained injuries when a goods lift in the employer's premises fell. Following the accident, the appellant received workers' compensation payments for a period. After a medical board certified him fit for light work, these payments were eventually terminated. The appellant then pursued a claim before the Workers' Compensation Commission, which found in favour of the employer, determining that the appellant had recovered from his incapacity. Subsequently, the appellant initiated a common law action against his employer for damages, alleging breach of statutory duty under the Scaffolding and Lifts Act 1912 and negligence in the care and management of the lift. The jury returned a general verdict for the appellant, with a deduction for compensation already received. The Full Court of the Supreme Court of New South Wales set aside this verdict and entered judgment for the respondent. The appellant appealed to the High Court.

The legal issues before the High Court included whether the appellant was precluded from bringing a common law action due to his prior proceedings under the Workers' Compensation Act, specifically concerning the interpretation of section 63 of that Act and the concept of election. Additionally, the court had to determine whether the lift in question was a "service lift in which no person travels" for the purposes of regulation 31(b) of the Scaffolding and Lifts Act 1912, and if not, whether a breach of this regulation gave rise to a private cause of action for the appellant's injuries. Finally, the court considered whether there was sufficient evidence to support the claim of negligence against the employer.

A majority of the High Court (Dixon, Evatt, and McTiernan JJ.) held that the appellant was entitled to maintain his common law action. This was based on the principle, established in *Latter v. Muswellbrook Corporation*, that section 63 of the Workers' Compensation Act does not bar a common law action unless the worker elected to proceed under the Act with knowledge of their alternative common law rights. The jury's verdict, by finding the appellant was unaware of these rights, negatived such an election. Regarding the Scaffolding and Lifts Act, the majority found that the lift was not a "service lift in which no person travels" and that a breach of regulation 31(b) did confer a private right of action. The court also found sufficient evidence to support the negligence claim. Starke J., dissenting, maintained his view that the prior proceedings under the Workers' Compensation Act, which had resulted in a final award, precluded the common law action.

The High Court, by majority, reversed the decision of the Supreme Court of New South Wales. The appeal was allowed, and the case was remitted to the Supreme Court for a new trial on the issues of liability and damages, with the jury's verdict for the appellant being reinstated in principle, subject to the outcome of the new trial.