Progress & Properties Ltd v Craft [1976] HCA 59

High Court of Australia Barwick C.J. Stephen, Mason, Jacobs and Murphy JJ. Progress & Properties Ltd v Craft [1976] HCA 59

ORDER Appeal dismissed with costs. Cross-appeal allowed with costs. Order of the Supreme Court of New South Wales (Court of Appeal Division), in so far as it allowed the appeal on damages to that Court and directed the entry of a verdict and judgment in the sum of $115,359, set aside and in lieu thereof order that that appeal be dismissed with costs and order that a verdict and judgment be entered in the action for the sum of $139,360.

Cur. adv. vult.

The following written judgments were delivered:—

Nov. 18 Barwick C.J.

In this appeal I have had the advantage of reading the reasons for judgment prepared by my brother Jacobs. The relevant facts and statutory provisions are there sufficiently detailed: I find no need to supplement my brother's statement of them.

Three aspects of the matter I have found difficult of resolution. The first is the question of the validity of the submission that, because the respondent's injuries were due to the combination of the acts of the driver of the hoist and the respondent's presence on it in contravention of the prohibition of reg. 139(25), the respondent had no cause of action against the appellant as the employer of the driver of the hoist, founded on negligence in the driving of the hoist carrying the respondent: secondly, was the appellant in breach of reg. 139(7) relating to the speed at which a loaded hoist should be lowered, assuming in any case that a civil action could be founded on a breach of that regulation? thirdly, whether the Court of Appeal was justified in setting aside the jury's verdict on the ground that the award of damages was excessive.

I have no difficulty in concluding that a plea of voluntary assumption of risk was properly withheld from the jury nor in concluding that the jury on the evidence could conclude that the driver of the hoist at the time his foot came off the brake pedal was acting within the scope of his employment, notwithstanding that, in breach of reg. 139(25), he had permitted the respondent to ride upon the hoist. I shall deal with what I consider to be the difficult question in the order in which I have listed them.