Jacob v Utah Construction & Engineering Pty Ltd [1966] HCA 67

High Court of Australia Barwick C.J. McTiernan, Taylor, Menzies and Owen JJ. Jacob v Utah Construction & Engineering Pty Ltd [1966] HCA 67

ORDER Appeal allowed with costs. Order of Supreme Court set aside and in lieu thereof order that judgment in demurrer be entered for the plaintiff on the second, third and fourth counts of the declaration.

Cur. adv. vult.

The following written judgments were delivered:—

Nov. 4 Barwick C.J.

This is an appeal from a decision of the Court of Appeal of the Supreme Court of New South Wales upholding demurrers to the second, third and fourth counts of a declaration, such counts being founded respectively upon breaches of regs. 73 (1), 73 (2) and 73 (3) of the Scaffolding and Lifts Regulations (the Regulations) made pursuant to s. 22 of the Scaffolding and Lifts Act, 1912 N.S.W., as amended (the Act).

On the hearing of the demurrers before the Court of Appeal certain amendments to the three counts were deemed to have been made, the effect of which was to insert the whole of the opening words of reg. 73 in the inducement of each count. In addition, the second count was deemed to be amended by the insertion of the particular requirement of reg. 86 (3) (b). But no actual amendments were made, itself a most unsatisfactory course to be adopted. Before this Court, upon it being pointed out that no causation was alleged between the breach of the regulations assigned in the respective counts and the damage claimed to have been suffered, a further amendment by consent was made. At the instance of this Court the fully amended counts were reduced to form and placed with the materials upon which this appeal must be decided. The laxity in pleading which has thus been exhibited and tolerated has merely to be noticed to be condemned. The counts upon which this Court is now asked to rule are as follows: