General Constructions Pty Ltd v Peterson [1962] HCA 48

High Court of Australia Dixon C.J. McTiernan, Taylor, Windeyer, and Owen JJ. General Constructions Pty Ltd v Peterson [1962] HCA 48

ORDER Appeal dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

Sept. 20 Dixon C.J., Taylor and Owen JJ.

This is an appeal from an order of the Full Court of the Supreme Court of New South Wales (Herron A.C.J., Brereton and Manning JJ.) dismissing an appeal by the defendant in an action in which the plaintiff recovered a verdict for £13,283 as damages for personal injury. The plaintiff's case was based upon an alleged breach of the duty imposed by reg. 73 (3) of the regulations made under the Scaffolding and Lifts Act but, as their Honours in the Supreme Court rightly pointed out, the count in the declaration upon which the plaintiff recovered his verdict did not properly set out the cause of action. No point was made of this, however, at any stage of the proceedings and the case has proceeded throughout as though the pleader had pleaded correctly.

Regulation 73 (3) provides that: "Any person who directly or by his servants or agents carries out any building work shall take all measures that appear necessary or advisable to minimize accident risk and to prevent injury to the health of persons engaged in such building work and for this purpose, without limiting the generality of the foregoing, he shall—provide means by fencing or otherwise for securing the safety of any person working at a place from which he would be liable to fall a distance of more than six feet."

The first submission made in support of the appeal was that the learned trial judge should have directed the jury to return a verdict for the defendant on the ground that, for a number of reasons, the sub-regulation had no application to the circumstances of the case, whatever view of the facts might have been taken by the jury.