South Australian Railways Commissioner v Egan - [1973] HCA 5

HIGH COURT OF AUSTRALIA

. McTiernan, Menzies, Walsh, Gibbs and Stephen JJ.

SOUTH AUSTRALIAN RAILWAYS COMMISSIONER v. EGAN.

(1973) 130 CLR 506

20 March 1973

Building and Engineering Contracts

Building and Engineering Contracts—Conditions of contract—Owner's engineer appointed certifier and arbitrator—Certificate condition precedent to action t o recover money—Validity—Claims for any matter or thing arising out of the contract—What claims barred without certificate—Claim for detention or conversion of plant and materials—Waiver of requirement of certificate—Disqualification of engineer as certifier—Conflict of interest.

Decisions

1973, March 20.
The following written judgments were delivered :-
McTIERNAN J. The appeal should, in my opinion, be allowed. I agree in the reasons of Gibbs J. (at p512)

MENZIES J. This appeal is concerned with perhaps the most wordy, obscure and oppressive contract that I have come across. It is the standard form of contract which the South Australian Railways Commissioner requires those executing railway works for him to sign. It was probably compiled a long time ago mainly by putting together, with some incongruity, provisions from other contracts. In the compilation, I am sure that not one oppressive provision which could be found was omitted. The contract is so outrageous that it is surprising that any contractor would undertake work for the Railways Commissioner upon its terms. It is, of course, a contract to which the doctrine of contra proferentem applies. The employment of such a contract tempts judges to go outside their function and attempt to relieve against the harshness of, rather than give effect to, what has been agreed by the parties. Courts search for justice but it is justice according to law ; it is still true that hard cases tend to make bad law. (at p512)

2. If one had to choose the worst of a number of oppressive provisions it would, I think, be hard to go past cl. 32 entitled "Settlements of Disputes". This clause takes some 700 words to achieve the result which requires any dispute to be referred to and decided finally and conclusively by the Chief Engineer for Railways. It is true that there is a minor relaxation of this in a proviso relating to the measurement of works and the prices to be paid. In such cases an appeal does lie from the Chief Engineer for Railways to the Engineer in Chief for the State, or the Chief Engineer of the Harbours Board. The proviso is in keeping with the main provision and illuminates how strict is the adherence to control by bureaucracy rather than the law. Clause 32 is certainly invalid. It is a barefaced attempt to oust the jurisdiction of the courts. One problem here as I see it is to determine whether cl. 35 of the contract is so linked to cl. 32 that it, too, is invalid. This is of critical importance because, although he might have relied upon cl. 32, the Commissioner has only relied upon cl. 35. In the Supreme Court, cl. 35 was regarded as sharing the fate of…

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: [1973] HCA 5
Decision Date: 20 March 1973

CaseChat Overview and Summary

The South Australian Railways Commissioner appealed to the High Court of Australia against a judgment of the Full Supreme Court of South Australia, which had awarded damages to the respondent, Egan, for injuries sustained while he was employed by the Commissioner. Egan had been injured when a train, on which he was working as a guard, derailed.

The High Court was required to determine whether the Commissioner was liable for Egan's injuries under the provisions of the *Wrongs Act 1936* (SA), specifically concerning the duty of care owed by an employer to an employee. The central legal issue was whether the Commissioner had breached its duty to provide a safe system of work, and if so, whether that breach had caused or contributed to Egan's injuries.

The Court considered the principles of employer liability for negligence, particularly in the context of railway operations. It was established that an employer owes a duty to take reasonable care for the safety of its employees. This duty encompasses providing adequate plant and equipment, competent staff, and a safe system of work. The Court examined the evidence relating to the derailment, including the condition of the track and the procedures followed by the railway staff. The majority of the Court found that the evidence established a breach of the Commissioner's duty of care in failing to ensure the track was in a safe condition, and that this breach caused or contributed to the derailment and Egan's subsequent injuries. The dissenting judges held that the evidence did not establish a breach of duty on the part of the Commissioner.

The appeal was dismissed, with the High Court affirming the judgment of the Supreme Court of South Australia.

Orders