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[1966] HCA 67
High Court of Australia
1966-07-01
Owen JJ
Original judgment source is linked above.
High Court of Australia Barwick C.J. McTiernan, Taylor, Menzies and Owen JJ. Jacob v Utah Construction & Engineering Pty Ltd [1966] HCA 67
ORDER Appeal allowed with costs. Order of Supreme Court set aside and in lieu thereof order that judgment in demurrer be entered for the plaintiff on the second, third and fourth counts of the declaration.
This is an appeal from a decision of the Court of Appeal of the Supreme Court of New South Wales upholding demurrers to the second, third and fourth counts of a declaration, such counts being founded respectively upon breaches of regs. 73 (1), 73 (2) and 73 (3) of the Scaffolding and Lifts Regulations (the Regulations) made pursuant to s. 22 of the Scaffolding and Lifts Act, 1912 N.S.W., as amended (the Act).
On the hearing of the demurrers before the Court of Appeal certain amendments to the three counts were deemed to have been made, the effect of which was to insert the whole of the opening words of reg. 73 in the inducement of each count. In addition, the second count was deemed to be amended by the insertion of the particular requirement of reg. 86 (3) (b). But no actual amendments were made, itself a most unsatisfactory course to be adopted. Before this Court, upon it being pointed out that no causation was alleged between the breach of the regulations assigned in the respective counts and the damage claimed to have been suffered, a further amendment by consent was made. At the instance of this Court the fully amended counts were reduced to form and placed with the materials upon which this appeal must be decided. The laxity in pleading which has thus been exhibited and tolerated has merely to be noticed to be condemned. The counts upon which this Court is now asked to rule are as follows:
and there was a regulation made pursuant to the said Act in full force and effect, namely reg. 86 (3) (b) in the following terms:
yet the defendant by itself its servants and agents did not provide suitable and safe scaffolding conforming to the requirements of the said reg. 86 (3) (b) and as a result the plaintiff whilst working as aforesaid fell whereby the plaintiff was seriously wounded and injured and suffered the damage in the first count hereof.
yet the defendant by itself its servants and agents did not provide and maintain safe means of access to every place where the plaintiff had to work and as a result the plaintiff whilst employed as aforesaid fell and was seriously wounded and injured and suffered the damage in the first count hereof:
yet the defendant by itself its servants and agents did not provide means by fencing or otherwise for securing the safety of the plaintiff and as a result the plaintiff whilst so employed as aforesaid fell a distance of more than six feet whereby the plaintiff was injured and suffered the damage in the first count hereof.
The demurrer point in the case of each count is that the regulation upon which it is founded is invalid as not authorized by the Act. It is said, and, in my opinion, rightly said, that the only provision of the Act to which any of the regulations under challenge could be referred is s. 22 (2) (g) (v) which authorizes the making of regulations - "relating to (v) safeguards and measures to be taken for securing the safety and health of persons engaged in building work, excavation work or compressed air work, or at or in connection with conveyors, cranes, hoists, lifts, plant, scaffolding and gear".
The three regulations, as I shall call them, though they might more precisely be called sub-regulations, are as follows:
(1) provide suitable and safe scaffolding, which shall conform to the requirements of these Regulations, for all work which cannot be done safely by a person standing on permanent or solid construction, except when such work can be done safely from ladders constructed in conformity with the provisions of these Regulations;
(2) provide and maintain safe means of access to every place at which any person has to work at any time;
(3) provide means by fencing or otherwise for securing the safety of any person working at a place from which he would be liable to fall a distance of more than six feet;
The decisive question as to the validity of each of these regulations is whether or not it prescribes a safeguard or measure to be taken for securing the safety or health of building workers. Does the regulation prescribe a step or course of action at all to be taken by the builder; and, if so, is the precise step or course of action required by the regulation capable of being regarded as a safeguard or measure for the safety or health of such workers? If both questions are answered affirmatively, the regulation, in my opinion, will be valid and persons who fall within its command will be bound to obey it, though the command or the safeguard it directs are alike unqualified by reference to what is reasonable or necessary. The decision as to the necessity to take such a step or to follow such a course of action if it amounts to a relevant safeguard and as to the reasonableness of so doing, in my opinion, has been committed by the Act to the regulation-making authority.
But it has been argued in this appeal that all three regulations must be held to be invalid because of the reasoning of the Judicial Committee in Utah Construction & Engineering Pty. Ltd. v. Pataky [1] . Therefore before examining the regulations to determine whether each does prescribe a step or course of action of the requisite nature, I shall need to consider that decision and its impact upon that examination.
But before doing so I should refer to a judgment of this Court which decided precisely that reg. 73 (2) did prescribe with adequate certainty a safeguard or measure of the appropriate kind and that it was valid. That is the case of Australian Iron and Steel Ltd. v. Ryan [2] . Unless this case was overruled by the Privy Council, it was binding upon the Court of Appeal of the Supreme Court of New South Wales and that Court ought not to have held that reg. 73 (2) was invalid. It is not, in my opinion, for a Supreme Court of a State to decide that a decision of this Court precisely in point ought now to be decided differently because it appears to the Supreme Court to be inconsistent with reasoning of the Judicial Committee in a subsequent case. If the decision of this Court is to be overruled, it must be by the Judicial Committee, or by this Court itself. It cannot be treated by a Supreme Court as if it were overruled. The matter is, of course, different where this Court's decision is not precisely in point and comparison has to be made merely between two lines of reasoning: see in this connexion Rejfek v. McElroy [3] .
It is quite clear, in my opinion, that the Judicial Committee in Utah Construction & Engineering Pty. Ltd. v. Pataky [1] did not overrule Australian Iron and Steel Ltd. v. Ryan [2] . In my opinion, Jacobs J.A. in the instant case [4] , was right in deciding that the Court of Appeal in relation to reg. 73 (2) was bound to uphold its validity. But, with respect, I could not agree that therefore the Court of Appeal was bound to hold both regs. 73 (1) and 73 (3) or either of them valid.
The Judicial Committee in Utah Construction and Engineering Pty. Ltd. v. Pataky [1] had before it reg. 98 for the making of which authority could only be sought in s. 22 (2) (g) (v) (supra). The regulation merely provided that "Every drive and tunnel shall be securely protected and made safe for persons employed therein". Their Lordships held that this regulation did not prescribe a safeguard or measure to be taken to secure personal safety but did no more than direct the employer to secure the safety of the employees at work in the drive or tunnel. That was the sum of their Lordships' decision and fully disposed of the contest between the parties which was before them.
In expressing their reasons, their Lordships said: "The regulation so far as applicable, merely restates the common law but in a form which the respondent contends imposes an absolute duty on the contractor which he is bound to comply with, whether he can do it or not, under pain of a penalty and civil liability for non-compliance" [2] . A regulation which tells the employer without qualification to do something in relation to the safety of his employees at work does go beyond the employer's common law duty; but whether or not a regulation is valid cannot, in my respectful opinion, turn on such an observation however descriptive it may be of what the regulation would achieve. On the other hand to say that a regulation prescribes no safeguard or measure to secure that safety is decisive of invalidity where the regulation is referable to such a provision as s. 22 (2) (g) (v). It cannot be taken, in my opinion, from the passage which I have just quoted from their reasons, nor from their reference to Ryan's Case [3] which I shall later quote, that their Lordships decided that a regulation otherwise within power is invalid if the obligation to observe it is unqualified or, to use the language of the respondents' submission, it imposes an absolute duty of compliance with its terms.
Nor can I read their Lordships' reasons as deciding that a regulation is invalid if it does not qualify the description of the safeguards it directs by reference to reasonableness or necessity. Of course, to be within the regulation-making power, the prescribed safeguard must be capable of being regarded as conducive to the safety and health of the building worker. But if it is, the reasonableness and necessity to prescribe it or to take it are matters for the regulation-making authority.
The power to make regulations given by s. 22 (2) (g) (v) is not restrained to the mere definition of common law obligations but reaches to the extension of them, even to the point of imposing unqualified obligations.
I respectfully agree with what Jacobs J.A. said of the passage in their Lordships' judgment, which I have quoted, when he said - "I do not read their Lordships as saying that the absolute requirement of safety vitiated the regulation nor that every requirement of safety must be regarded as the expression of an end without expressing the means to be taken. Rather I take their Lordships to be saying that reg. 98 was merely echoing the words of s. 22 (2) (g) (v), and therefore expressing the end itself without expressing the means to be adopted in order to achieve the end" [1] .
Their Lordships, by way of obiter dicta, referred to this Court's decision in Australian Iron and Steel Ltd. v. Ryan [2] Observing that an argument that reg. 73 (2) did not prescribe a means but only an end to be achieved had not been put forward in that case, their Lordships called attention to the language of the opening sentence of reg. 73 and observed as follows: " that the opening words of reg. 73 are not to be found in reg. 98. The safety measures which are to be taken under reg. 73 are such as "appear necessary to minimise accident risk". If therefore the provision of a safe means of access to a place of work appears necessary to minimize accident risk in Ryan's Case [2] , their Lordships would think that the result of the case was justified and the decision is distinguishable from the present case. Moreover, upon the facts of the case, breach of reg. 73 (5) would have been sufficient for the plaintiff to succeed. If, however, the opening words do not apply, then it would appear doubtful whether Ryan's Case [2] , so far as reg. 73 (2) is concerned, can stand with the present decision" [3] . In relation to these remarks, it is necessary to examine reg. 73 somewhat closely.
The structure of that regulation is first to seek to impose upon the builder a general obligation to decide for himself what measures appear, presumably to him, to be necessary to be taken to minimize accident risk and to prevent injury to the health of building workers and then to take all such measures. Thereafter the regulation in the numbered paragraphs describes what the regulation-making authority thought - and in one instance, as I think, erroneously - were specific safeguards to be taken to minimize accident risk and prevent injury to the health of building workers and thus conducive to their safety and health. These paragraphs are all prefaced with the words "and for this purpose". Thus, in so far as what are referred to as "the opening words" of the regulation are purposive, they are by this preface imported into the several numbered paragraphs. They will assist the construction and application to particular situations of these paragraphs but, in my opinion, they will neither qualify the obligation to obey the command of the paragraph nor the description of the safeguard, if any, which the paragraph describes. In my opinion, conformably to the views of their Lordships in Pataky's Case [1] , the attempt to impose the vague and general obligation of the opening words of reg. 73 fails. But, in my opinion, this failure does not infect the prescriptions of the numbered paragraphs of reg. 73 with invalidity if otherwise they direct relevant safeguards. The numbered paragraphs stand or fall, in my respectful opinion, according as they themselves meet or fail to meet the criterion of a safeguard or measure for securing the safety or health of the building worker. If the language of a paragraph properly construed does prescribe a step or course of action capable of being regarded as conducive to the safety or health of the building worker, it will be valid and will represent the judgment of the regulation-making authority as to what is necessary or advisable to minimize accident risk and to prevent injury to health of building workers.
The respondent submitted, and the majority of the Court of Appeal accepted, the view that a regulation which describes the physical condition of an object as "safe" failed for that reason to prescribe a safeguard. Jacobs J.A. epitomized the argument: "It has been submitted" he said "that the effect of Pataky's Case [1] is that a regulation requiring that any place or course of operations be safe is bad, that "safe" or "secure" as words of requirement in the regulations are forbidden words upon the ground that they express an end but not the means by which the end may be achieved" [2] . But to tell an employer to provide a safe ladder for a workman to pass from the ground to a height above it is, in my opinion, to prescribe a safeguard. It is not to the point that the decision whether a given ladder is safe in the circumstances of its use or intended use may give rise to diversity of opinion. It is enough that the physical quality the ladder is required to possess in relation to the circumstances of its use is adequately specified by the description "safe". It may be that it is not universally true that the word "safe" sufficiently describes a physical attribute or condition. But, in my opinion, neither is the converse. I am unable to read any part of their Lordships' reasons in Pataky's Case [1] as denying the proposition that the description of an object or course of conduct as "safe" may amount to a sufficient description of a relevant safeguard or as supporting the submission of the respondents in this respect.
I now turn to the three regulations in turn. Regulation 73 (1) requires the provision of suitable and safe scaffolding conforming to the requirements of the regulations. The word "suitable" is appropriate to describe the qualities the scaffolding must have both in relation to the work to be performed, the site, including the elevation, at which it is to be used, and the purposes it is to serve having regard to the risk to safety and prevention of injury to health which the occasion of its use may involve. I have already indicated my view as the appropriateness and effectiveness of the description "safe". In this instance, in my opinion, it does designate physical properties or attributes which the scaffolding must have. Besides having these qualities of being suitable and safe, the scaffolding must conform to any specific requirements which the regulations elsewhere prescribe in the circumstances in which the scaffolding is to be used. In my opinion, this regulation sufficiently prescribes a safeguard or measure for securing the safety or health of building workers.
If my conclusion that the sub-regulation itself prescribes a safeguard or measure of the requisite nature is right, then the addition of "the opening words" as qualifying the description of the safeguard or measure would seem to me to carry the matter no further; indeed, it would but introduce a confusing redundancy. Equally, if my conclusion is wrong, the addition of these words would not turn the sub-regulation into the prescription of a relevant safeguard or measure. I cannot think that the inclusion of the opening words of reg. 73 either as a substantive part of or as a preface to reg. 98 could have supplied the lack of a specific safeguard in that regulation; nor do I apprehend that their Lordships so decided or would have been prepared so to decide.
Regulation 73 (2) requires the provision and maintenance of safe means of access to the working place. A means of access is of course physical. Its nature may vary infinitely from a plank to an opening to a mine. But whatever form it takes, in my opinion, the quality or characteristic which it is required to have is, in my opinion, adequately described in relation to the regulation-making power as "safe". To require the provision of a safe means of access to the work place is quite different from requiring the employer to secure the safety of the workmen in gaining access to the work place. The former to my mind does prescribe a safeguard or measure: the latter but the desired end to be attained.
The Court in Ryan's Case [1] decided that reg. 73 (2) was valid and conferred private rights upon a building worker injured by its breach. None of the participating justices found need to call in aid the opening words of reg. 73 in order to decide validity. Indeed, the Court specifically endorsed the decision of the Supreme Court of New South Wales. That Court, having said that the opening words of the regulation did not themselves constitute an effective exercise of the regulation-making power, expressly held that "the regulations were validly made and, although the general words at the commencement of reg. 73 are in terms that would be unenforceable, the specific requirements of the two sub-regulations which are now material are not thereby tainted so as to be similarly unenforceable" [2] . In my opinion, for the reasons I have given, the decision of this Court in Ryan's Case [1] upholding the validity of reg. 73 (2) was correct and ought not to be disturbed.
Regulation 73 (3) requires the provision of means by fencing or otherwise for securing the safety of any person working at a place from which he would be liable to fall more than six feet. The sub-regulation has already received construction by this Court in General Constructions Pty. Ltd. v. Peterson [3] . The Court there decided that the words "by fencing or otherwise" meant by fencing or by some other means, the words "or otherwise" not being limited ejusdem generis with fencing. I would respectfully agree with this construction. But in that event, I am unable to see that the sub-regulation does prescribe the means which the builders must take to achieve the desired safety. It seems to me that upon its proper construction the sub-regulation does no more than require that by some means the builder shall secure the safety of the worker in the described situation. The inclusion of the reference to fencing does not, in my opinion, render the prescription of the safeguard or measure certain. Consequently, in my opinion, this sub-regulation is invalid.
I would allow the appeal so far as it concerns regs. 73 (1) and 73 (2) and dismiss it so far as it concerns reg. 73 (3).
The purpose of these demurrers to the second, third and fourth counts of the plaintiff's declaration is to obtain a decision as to the validity of regs. 73 (1), (2) and (3) made under the Scaffolding and Lifts Act N.S.W..
In Australian Iron and Steel Ltd. v. Ryan [1] , reg. 73 (2) and (5) were held by this Court, affirming the decision of the Supreme Court [2] , to be within the regulation-making power contained in s. 22 (2) (g) (v) of the Act. But in Utah Construction & Engineering Pty. Ltd. v. Pataky [3] , a recent decision of the Judicial Committee, doubts were expressed by their Lordships whether Ryan's Case [1] , in so far as it dealt with the validity of reg. 73 (2), was rightly decided. What was said was, however, obiter since that case was concerned with the validity of reg. 98, the terms of which we will presently set out and which differ in many respects from those of reg. 73 (2). Counsel for the defendant in the present case has contended, however, that, in the light of Pataky's Case [3] , reg. 73 (1), (2) and (3) should now be held to be beyond power and that the decision in Ryan's Case [1] upholding the validity of reg. 73 (2) was wrong. This makes it necessary to consider these cases in some detail.
In the Supreme Court the view was taken by Wallace P. and Asprey J.A. that the decision in Ryan's Case [1] that reg. 73 (2) was a valid exercise of the regulation-making power could not stand with Pataky's Case [3] , and that applying their Lordships' reasoning in that case, reg. 73 (1), (2) and (3) are all invalid. The third member of the Supreme Court, Jacobs J.A., was of the contrary opinion. He thought that each of the three provisions was within power and that the grounds upon which Pataky's Case [3] was decided were not inconsistent with Ryan's Case [1] . Accordingly he followed the latter decision.
Before discussing the problems thus raised, we think it right to make some reference to the unsatisfactory way in which the demurrers in the present case have proceeded. During the argument in the Supreme Court it was suggested that the second count which was based upon reg. 73 (1) was in any event demurrable because it made no reference to a further regulation, reg. 86, which sets out certain specifications with which scaffolding must comply. The case, however, proceeded upon the basis that an amendment to meet this objection should be deemed to have been made. No amendment was in fact made and, as Asprey J.A. observed, this is an unsatisfactory way of dealing with a demurrer. When the case came on to be heard in this Court we ordered that the count with the "deemed" amendment should be set out in writing. This was done. Attention was then directed from the Bench to the fact, which seems not to have been noticed earlier, that each of the counts was in any event demurrable because none of them alleged that the plaintiff's injuries had resulted from a failure by the defendants to comply with the regulation upon which the count was based. Counsel for the plaintiff thereupon sought and was granted leave to amend in order to cure this defect and the amended counts were later placed before us. Pleaders should not adopt such slovenly methods, particularly in cases in which the parties desire to have important matters of principle decided.
We turn now to deal with the substantial questions with which the case is concerned, and before examining Ryan's Case [1] and Pataky's Case [2] , it is convenient to set out the provisions of the Act and of the regulations with which this case is concerned as well as those which were considered in those two cases. One of the purposes of the Act is to prevent or reduce the risk of injury to persons employed in building or excavation work and, under s. 22 (1), "The Governor may make regulations not inconsistent with this Act prescribing all matters which are required or authorised to be prescribed or which are necessary or convenient to be prescribed for carrying out or giving effect to this Act."
Section 22 (2) provides that: "Without limiting the generality of the powers conferred by subsection one of this section the Governor may make regulations - (g) relating to (iv) the manner of carrying out building work, excavation work (v) safeguards and measures to be taken for securing the safety and health of persons engaged in building work, excavation work "
Regulation 73 (1), (2), (3) and (5) are in these terms:
Any person who carries out any building work shall take all measures that appear necessary or advisable to minimise accident risk and to prevent injury to the health of persons engaged in such building work and for this purpose, without limiting the generality of the foregoing, he shall - (1) provide suitable and safe scaffolding, which shall conform to the requirements of these Regulations, for all work which cannot be done safely by a person standing on permanent or solid construction, except when such work can be done safely from ladders constructed in conformity with the provisions of these Regulations; (2) provide and maintain safe means of access to every place at which any person has to work at any time; (3) provide means by fencing or otherwise for securing the safety of any person working at a place from which he would be liable to fall a distance of more than six feet; (5) keep all stairways, corridors and passageways free from loose materials and debris, building materials, supplies and obstructions of every kind.
Regulation 98 (the validity of which was in question in Pataky's Case [1] , provides that: "Every drive and tunnel shall be securely protected and made safe for persons employed therein."
The reason why reg. 98 was held by the Privy Council to be beyond power is plain. It could not be justified as a regulation made pursuant to s. 22 (2) (g) (iv) since it did not prescribe a "manner of carrying out excavation work". It merely directed that every drive or tunnel should be securely protected and made safe and did not state a manner of achieving that end. Nor could it be justified under s. 22 (2) (g) (v) since it did not specify what safeguards or safety measures were to be provided or taken. With those conclusions we respectfully agree. Their Lordships then went on to discuss Ryan's Case [2] and expressed the opinion that in so far as that case decided that reg. 73 (5) was valid it was rightly decided. They appear to have felt some doubt, however, as to the correctness of the decision in so far as it upheld the validity of reg. 73 (2) and, after pointing out that "the opening words of reg. 73 are not to be found in reg. 98", went on: "The safety measures which are to be taken under reg. 73 are such "as appear necessary to minimise accident risk". If therefore the provision of a safe means of access to a place of work appears necessary to minimize accident risk in Ryan's Case [2] , their Lordships would think that the result of the case was justified and the decision is distinguishable from the present case. Moreover, upon the facts of the case, breach of reg. 73 (5) would have been sufficient for the plaintiff to succeed. If, however, the opening words do not apply, then it would appear doubtful whether Ryan's Case [2] , so far as reg. 73 (2) is concerned, can stand with the present decision." With all respect to their Lordships, we have found difficulty in some of these observations. In the first place Ryan's Case [2] was decided upon demurrers to two counts, the one based upon reg. 73 (2), the other upon reg. 73 (5) and, on demurrer, each count had to be separately considered. The decision meant that the plaintiff was free to go to trial alleging a breach of each of the two sub-regulations and to succeed by establishing a breach of either of them. It was, therefore, not to the point to attempt to justify the decision by observing that "upon the facts of the case, breach of reg. 73 (5) would have been sufficient for the plaintiff to succeed". Furthermore, their Lordships appear to have construed reg. 73 as if the safeguards and measures dealt with in the paragraphs numbered (1) to (22) are required to be provided only if they "appear necessary or advisable to minimise accident risk and prevent injury to health". On that construction it would have been necessary for the plaintiff in Ryan's Case [1] to allege in each of the counts that, in the circumstances of the case, the safeguards for which reg. 73 (2) and (5) called appeared "necessary or advisable to minimise accident risk" and without such an allegation both counts would have been demurrable. But, with great respect, we do not think that is the true meaning of the regulation. Its opening words provide in wide and general terms - perhaps in terms that are too wide and general - that any person who carries out building work shall take all measures that "appear necessary or advisable to minimise accident risk and to prevent injury to the health of persons engaged in such building work". It proceeds then, "without limiting the generality of the foregoing", to require that for the purpose of preventing accident risk and of preventing injury, certain specific steps shall be taken by persons engaged in construction work. In short, in deciding whether a particular numbered paragraph is within power we would have thought that the only question was whether it sufficiently specifies a manner of carrying out work or a safeguard or measure to be taken to secure the safety of those engaged in such work. It is in this way, in our opinion, that the validity of reg. 73 (1), (2) and (3) is to be determined.
As to reg. 73 (1), the arguments for the defendant were based in the main upon the fact that the regulation speaks of the provision of "suitable and safe" scaffolding. It does no more, it is said, than impose an obligation in general terms to secure the safety of persons engaged in the performance of building work of the type mentioned. It merely states the end to be achieved and not the measures to be taken to achieve that end. We do not agree that this is so. Regulation 73 (1) requires that in the circumstances set out in it scaffolding shall be provided and the words "suitable and safe" describe the qualities that that scaffolding must possess. In our opinion, it is a valid exercise of the regulation-making power.
So far as the validity of reg. 73 (2) is concerned, we are of opinion that it sufficiently specifies the steps that are to be taken to minimize the risk of injury; that it is therefore a valid exercise of power and that Ryan's Case [1] was rightly decided.
As to the validity of reg. 73 (3), originally we felt some doubt because of the use in it of the words "or otherwise". It is not, we think, to the point to argue that it is to be construed as imposing an absolute obligation to secure safety and that for this reason it is invalid. We do not read it as imposing such an obligation but whether or not this is so, what the sub-regulation does is to specify the kind of precaution that is to be taken. What it requires is that a safeguard is to be provided, by fencing or other means, to prevent the fall of a man who is working at a place from which he would be liable to fall more than six feet. This is, we think, a sufficient specification of the means to be adopted to minimize the risk of accident to bring reg. 73 (3) within power. We should add that we have had the opportunity of reading the judgment of the Chief Justice and agree with him that in considering the validity of reg. 73 (2) the Supreme Court was bound to follow the decision of this Court in Ryan's Case [1] .
For these reasons we would allow the appeal and substitute for the order of the Supreme Court an order that judgment in demurrer be entered for the plaintiff on each of the counts.
The case for the respondents, which succeeded in the Supreme Court of New South Wales (Wallace P. and Asprey J.A., Jacobs J.A., dissenting), is that, notwithstanding the decision of this Court in Australian Iron and Steel Ltd. v. Ryan [1] , the later decision of the Privy Council in Utah Construction & Engineering Pty. Ltd. v. Pataky [2] , establishes the invalidity of reg. 73 (1), (2) and (3) of the Regulations made under the Scaffolding and Lifts Act N.S.W..
What the Privy Council decided in Pataky's Case [2] is that reg. 98 of the Regulations previously referred to is invalid. The reasoning which led to that conclusion was that, whereas the relevant authority to make regulations (i.e., s. 22 (2) (g) (v)) is to make regulations "relating to safeguards and measures to be taken for securing the safety and health of persons engaged in excavation work", reg. 98 merely prescribes that the tunnel, etc., must be safe. In short, whereas the power was to prescribe means to secure safety, the regulation in question prescribed no means but simply the end which the power to prescribe means was, no doubt, intended to serve by the specification of things to be done or not to be done. It follows, of course, that if reg. 73 shares the vice of reg. 98, it must also share its fate.
Regulation 73 (1), (2) and (3) is as follows: - "Any person who directly or by his servants or agents carries out any building work shall take all measures that appear necessary or advisable to minimise accident risk and to prevent injury to the health of persons engaged in such building work and for this purpose, without limiting the generality of the foregoing, he shall - (1) provide suitable and safe scaffolding, which shall conform to the requirements of these Regulations, for all work which cannot be done safely by a person standing on permanent or solid construction, except when such work can be done safely from ladders constructed in conformity with the provisions of these Regulations; (2) provide and maintain safe means of access to every place at which any person has to work at any time; (3) provide means by fencing or otherwise for securing the safety of any person working at a place from which he would be liable to fall a distance of more than six feet."
In Pataky's Case [1] , the validity of reg. 73 (2) was recognized and Ryan's Case [2] , upholding the regulation, was conditionally approved. As to this, the Privy Council said: - "The safety measures which are to be taken under reg. 73 are such as "appear necessary to minimise accident risk". If therefore the provision of a safe means of access to a place of work appears necessary to minimize accident risk in Ryan's Case [2] , their Lordships would think that the result of the case was justified and the decision is distinguishable from the present case. Moreover, upon the facts of the case, breach of reg. 73 (5) would have been sufficient for the plaintiff to succeed. If, however, the opening words do not apply, then it would appear doubtful whether Ryan's Case [2] , so far as reg. 73 (2) is concerned, can stand with the present decision" [3] . It would, I think, be wrong to regard this comment as indicating that the opening words of reg. 73 do not apply to reg. 73 (2). It seems to me that they must. Their Lordships' comment does, however, recognize that a regulation is not invalid merely because it requires the provision of something which is "safe" as part of the description of what is properly to be regarded as a safeguard or a measure for securing the safety of persons working. I regard the respondent's contention that the Privy Council's decision invalidates any regulation which requires the provision, inter alia, of "safe means of access" (reg. 73 (2)), or "effective fencing" (reg. 73 (8)), or "adequate ventilation" (reg. 73 (9), (10) and (11)), or "suitable facilities" (reg. 73 (12)), as not merely going beyond what is involved in their Lordships' decision but as actually contrary to the purport of the passage which I have cited.
Regulation 73, as I understand it, makes valid provisions in general terms and then, for the purpose of minimizing risk and of preventing injury to the health of those working (see s. 22 (2) (g) (v)), requires particular safeguards including those specified in pars. (1), (2) and (3). So regarded, I find nothing in Pataky's Case [1] requiring the conclusion that these particular provisions should be treated as invalid. I did, at first, have some doubt about the words "or otherwise" in reg. 73 (3) but, upon the whole, I think this provision should be regarded as requiring the person bound thereby to provide fencing or, at his option, some other means serving the same purpose as fencing, to reduce the risk of a worker falling who, if he were to fall, would fall more than six feet. So read with the opening words of reg. 73, the provisions of par. (3) are, I think, authorized by s. 22 (2) (g) (v) of the Act.
Jacob
Utah Construction & Engineering Pty Ltd