Nicol v Allyacht Spars Pty Ltd [1987] HCA 68

High Court of Australia Mason C.J. Brennan, Dawson, Toohey and Gaudron JJ. Nicol v Allyacht Spars Pty Ltd

ORDER Appeal allowed with costs. Order of the Full Court of the Supreme Court of Queensland dated 19 December 1986 set aside and in lieu order:Appeal allowed with costs.Judgment of the Supreme Court of Queensland dated 3 April 1986 be set aside in so far as it adjudges that the plaintiff recover nothing against the defendant and that the defendant recover against the plaintiff its costs to be taxed. In lieu thereof enter judgment for the plaintiff against the defendant in the sum of $167,609.57 together with interest and order that the defendant pay the plaintiff's costs of the action. Reserve liberty to the appellant to apply on seven days notice for such order in relation to interest as may be appropriate.

Cur. adv. vult.

The following written judgments were delivered:—

Nov. 6 Mason C.J., Toohey and Gaudron JJ.

The respondent, Allyacht Spars Pty. Ltd., is a small company having as its principal business the manufacture and installation of yacht masts and rigging. It also manufactures flag-poles though it does not install them.

At the time of the appellant's accident which gave rise to this litigation, it had three directors, each of whom was employed by the respondent. The appellant, Glenn Anthony Nicol, was one of the directors; Mr. Berg and Mr. Gray were the others. There was a division of labour among the directors. Mr. Gray was largely concerned with administration; in his own words, he "ran most of the office operations". Mr. Berg was in charge of fabrication in the workshop. The appellant described himself as "just an employee of the company".

However, about a month before the accident the respondent undertook the construction of a catamaran for sale. Business was then slack and the work was seen as a form of diversification. This work became the appellant's immediate concern and he was in charge of construction.