Leask Timber & Hardware Pty Ltd v Thorne [1961] HCA 73

High Court of Australia Dixon C.J. McTiernan. Kitto, Taylor and Windeyer JJ. Leask Timber & Hardware Pty Ltd v Thorne [1961] HCA 73

ORDER Appeal allowed with costs. Rule of the Supreme Court discharged. In lieu thereof order that the defendant's demurrer to the second count of the plaintiff's declaration be allowed and that the plaintiff do pay the costs of such demurrer.

Cur. adv. vult.

The following written judgments were delivered:—

Nov. 16 Dixon C.J.

The question which appears to me to lie at the heart of this case is whether the effect of s. 17 of the Scaffolding and Lifts Act, 1912-1948 N.S.W. is to enact that it shall be an offence to drive or to authorize the driving of a power crane unless the driver possesses a certificate of competency to do so and, in so enacting, impliedly to give a civil remedy in damages to a member of the public who suffers personal injury by reason of a driving of the crane which is unlawful because the crane is driven without compliance with the condition.

The question arises upon a demurrer to a count in a declaration. The plaintiff is a widow who sues under the Compensation to Relatives Act, 1897-1953 N.S.W. in respect of the death of her husband. The declaration is framed in a way which makes the case more difficult to understand than I think it need be; but in substance the question is whether a civil action flows from the death of a person through injuries sustained by the working of a power crane if the person driving the power crane does not possess a certificate authorizing him to do so. The plaintiff, for her cause of action and indeed for the form of her pleading, rests upon the case of Thorne v. Council of the Municipality of Bankstown [1] . It was a case in which a suit was brought under the Compensation to Relatives Act for damages in respect of the death of a man from injuries caused by the operation of a power crane which he himself was driving. He did not hold a certificate of competency as driver as required by the Scaffolding and Lifts Act. Herron and Brereton JJ., Maguire J. dissenting, held that a breach by an employer of the provision contained in sub-s. (3) of s. 17 forbidding him to employ, instruct or allow a person who is not the holder of a certificate of competency to drive a power crane conferred a cause of action upon a person injured thereby. Their Honours held also that a person so injured was entitled to a cause of action notwithstanding that he was himself the very driver of the crane who was uncertificated: accordingly that if he died of the injuries his widow might sue. Section 17 of the Scaffolding and Lifts Act, 1912-1948 makes provision in three sub-sections against the driving of a power crane or power hoist in various circumstances. Sub-section (2) need not be considered; it deals with a certificated driver exceeding the limitations of his certificate. It is sub-ss. (1) and (3) that matter in this case. As to sub-s. (1) it is enough to say that it provides in effect that any person who is not the holder of a certificate of competency as a power crane or power hoist driver is guilty of an offence if he drives a power crane or drives a power hoist used in building work or drives any other power hoist controlled from a platform or the like attached to and moving with the hoist unit. In the case of Thorne v. Council of the Municipality of Bankstown [1] , Thorne was offending against this provision when he met his death; for he was not the holder of a certificate of competency and yet was driving a machine falling within the class of machine covered by the sub-section. Sub-section (3) contains a prohibition against employing or instructing or allowing an uncertificated person to drive a power crane or the like. It provides that any person who employs, instructs or allows any person who is not the holder of a certificate of competency as a power crane or power hoist driver to drive such a machine is guilty of an offence. It is under these provisions that the case of the Municipality of Bankstown [1] was decided. I shall not discuss that decision at length. The judgments in the case contain much that it would be necessary carefully to consider were it not that there is a preliminary factor which, with all respect, I find an insuperable object to accepting the decision It lies in the fact that the person injured was himself the offender under sub-s. (1) and the person made liable was simply his employer offending against sub-s. (3). I find it impossible to construe s. 17 as meaning that, where a person employs or instructs or allows a man to drive a crane who himself offends by doing so, the latter if he is injured shall have a cause of action against the former. The person who employs or instructs or allows an uncertificated person to drive a power crane in effect occupies the statutory position of accessory before the fact. The person who drives the power crane, although he has no certificate, offends against sub-s. (1) and is in substance the principal offender. That is the manner in which the statute is framed and it seems impossible to suppose that the person offending under sub-s. (3) shall be liable to the person who is the principal offender under sub-s. (1).