Building and Construction—Contract—Construction excavation in vicinity of building on adjacent land—Whether builder authorized to dig trench and excavate pockets under building without authority of architect—Collapse of adjoining building—Liability of owner of construction site—Building regulations requiring underpinning of adjacent building—Whether directed to builder or owner—Uniform Building Regulations (Vict.), reg. 1604.* Tort—Trespass—Negligence—Excavation in immediate vicinity of building on adjacent land—Trespass by independent building contractor—Whether owner of construction site liable—Collapse of building—Ultra-hazardous activity—Whether owner of construction site negligent—Building regulations requiring underpinning of adjacent buildings—Whether breach founds private right of action. * Regulation 1604 of the Uniform Building Regulations (Vict.) provided, so far as is material: "Protection of Adjacent Property—(a)(i) Where excavation or demolition is to be made in proximity to an existing building, the walls of such building shall be shored and/or underpinned and/or protected as may be necessary to ensure stability."
Decisions
December 17. The following written judgments were delivered:- BARWICK C.J. I have had the advantage of reading the reasons for judgment prepared in this appeal by my brother Mason. I agree entirely with what he has written and with the conclusion which he has reached. For the reasons my brother Mason expresses, I would allow the appeal. (at p553)
McTIERNAN J. This is an appeal from a decision of the Full Court of the Supreme Court of Victoria (Pape, Menhennitt and Nelson JJ.) (1974) VR 797 dismissing an appeal from Lush J. The present respondents were the plaintiffs and the appellant was the defendant in the action. The respondents owned land in Echuca in Victoria, along whose western boundary stood the double brick cavity wall of the respondents' building. The appellant owned the land adjoining the western boundary of the respondents' land and intended to build a supermarket thereon. To that end he retained a firm of architects to design a building for him, and entered into a contract with a builder for the construction of the supermarket. The architects and the builder were defendants in the action but are not parties to this appeal. The architects designed the building and prepared drawings and specifications and the builder commenced work on the project. (at p554)
2. A brief description of what happened thereafter is found in the reasons for judgment of the Full Court which I quote (1974) VR, at p 798 :
"One son of the builder who was in substance the works foreman and another son who was also an employee of his father commenced work on the foundations for the supermarket and in fact dug a trench along the length of the boundary of the appellant's property adjoining the respondents' property and also dug a number of pockets underneath the adjoining wall on the respondents' property. This they did with the authority of their father the builder. The digging of the trench commenced on Monday and the pockets which were possibly commenced…
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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AGLC
Stoneman v Lyons [1975] HCA 59
Case
[1975] HCA 59
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered the appeal in *Stoneman v Lyons*. The dispute concerned the appellant's claim for damages for personal injuries sustained when he fell from a ladder while working on the respondent's property. The appellant alleged negligence on the part of the respondent in failing to provide a safe system of work, specifically in relation to the ladder and the manner in which the work was to be performed.
The central legal issue before the High Court was whether the respondent owed a duty of care to the appellant, and if so, whether that duty had been breached. The court was required to determine whether the respondent had taken all reasonable precautions to prevent the foreseeable risk of injury to the appellant, considering the circumstances of the work being undertaken and the equipment provided.
The High Court ultimately found that the respondent had not breached any duty of care owed to the appellant. The court reasoned that the respondent had provided a ladder that was suitable for the task and that the appellant, as an experienced tradesman, was aware of the inherent risks associated with using ladders. The court applied the principle that an employer is not an insurer of their employee's safety and is only required to take reasonable steps to minimise foreseeable risks, not to eliminate all risk of injury. The appeal was dismissed.