BALLINA SHIRE COUNCIL v DALEY [1991] NSWCA 18

BALLINA SHIRE COUNCIL v DALEY

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CLARKE, MEAGHER and HANDLEY JJA 13 March 1991

[1991] NSWCA 18

MASTER AND SERVANT — CONSTRUCTION SAFETY ACT — Reg73(2) AND Reg73(3) BREACH OF STATUTORY DUTY — CAUSATION MEANS OF ACCESS — PLACE OF WORK DAMAGES — JURY

Clarke JA In this case the appellant (which was the defendant at the trial) appeals from the judgment entered insofar as it proceeded upon the basis of the jury's finding on two statutory counts, to which I will refer.

The appellant's submission was that there was no evidence fit for submission to the jury of a breach of Reg73(2) of the regulations made under the Construction Safety Act or a breach of Reg73(3) of the same regulations. Alternatively, the appellant submitted, if it was correct to conclude that it had been open to the jury to find a breach of Reg73(3), there was no evidence of a causal nexus between that breach and the injury suffered by the respondent.

In order to understand the submissions it is necessary shortly to summarise the facts, putting them at the highest from the respondent's point of view, and also to set out the relevant regulations.

The respondent was an employee of the appellant shire council, having worked there for a number of years. He was employed, alternatively, as a labourer or a chainman assisting surveyors. On 25 September 1986 he was working as a chainman assisting in an operation the ultimate objective of which was to straighten out bad corners on the Bruxner Highway. His task, as he described it, on that day was to climb steep banks at the side of a road in order to hammer in pegs in positions indicated either by his foreman or the surveyor. It would appear clear that he also was required to carry the hammer, the pegs and a staff, and perhaps other equipment which was to be used either by him or by the surveyor's assistant, Mr Henderson.