Derbyshire Building Co Pty Ltd v Becker [1962] HCA 14

High Court of Australia Dixon C.J. McTiernan, Kitto, Taylor and Windeyer JJ. Derbyshire Building Co Pty Ltd v Becker [1962] HCA 14

ORDER Appeal dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

1962, Mar. 8 Dixon C.J.

The respondent Becker is the plaintiff in an action for damages for personal injuries sustained while he was using a hand tool consisting of a portable electrical circular saw. The work he was doing at the time was fencing a cottage for the appellant, a building company. The accident took place on Saturday 14th July 1956, when he was working for the defendant company at contract rates in the capacity, as it has been held, of an independent contractor. That he was not working as an employee or servant at the time is not now disputed by the plaintiff. But during the ordinary working week he was an employee of the defendant company at wages and he had been employed by them for some years. It appears that he worked in the joinery shop. The defendant, which seems to be a family company, carried on the business of building houses and at the time in question they were building cottages which they fenced with chain wire or with paling fencing. The work done in the joinery shop was done by employees but at least some of the work done in building appears to have been done by sub-contract. That applied at all events to the work of fencing the houses. It was work that was done or could be done out of ordinary working hours by a tradesman in the defendant's employ. About the end of May 1954, as the plaintiff respondent put the date, he was told by one of the family that the man doing the fencing was leaving it and asked whether he would take it on at the same rates, which were 1s. 9d. a foot for paling fences and 2s. 1d. a foot for chain wire fences. He agreed to do so. This meant working at the week-end. The defendant company of course supplied all the materials. The plaintiff, as carpenters do, used his own tools during the working week and of course he did so during the week-end. But there was one hand machine tool which he used during the week as occasion required which belonged to the defendant company. It was an eight inch circular saw called by the name of its makers, Black & Decker.