Kostrzewa v Southern Electric Authority

High Court of Australia|1969-07-01|Before: Owen JJ

High Court of Australia Barwick C.J. Kitto, Taylor, Windeyer and Owen JJ. Kostrzewa v Southern Electric Authority (Qld) [1969] HCA 32

The appellant was employed by a contractor engaged by an owner of land to do building work on that land. It would seem that the work involved the use of scaffolding of some kind. The appellant according to his claim was injured by falling through an uncovered area which fell within the description of a "well-hole" as that expression is used in the Regulations to which I shall shortly refer.

The appellant sued the owner of the land in the Supreme Court of Queensland. In his pleading he asserted no more relevantly than that the defendant was the owner of land within the meaning of reg. 16 of the Regulations made under The Inspection of Scaffolding Acts, 1915 to 1966 of the State of Queensland (the Regulations). Upon the matter coming on for hearing no evidence was led because at the outset the trial judge raised the question whether the Regulation to which I have referred applied to the defendant who is now the respondent, that is to say, whether the respondent was relevantly the owner for the purposes of the Regulation. The somewhat unusual course was then taken of arguing the applicability of the Regulation as if a point of law had been raised by the defendant and had then come for disposal. After hearing argument on assumed facts the trial judge held that the Regulation was inapplicable and entered a verdict for the defendant. Of course, if the matter had been dealt with regularly and there had been a point of law set down for argument before the trial of the action, the resultant decision against the appellant would not have immediately resulted in a verdict and judgment. The possibility of the addition of other causes of action or indeed of some other amendment would have remained. However, the appellant took no objection to the course pursued by the trial judge nor did he seek any leave to amend: but he appealed to the Full Court of the Supreme Court of Queensland. His appeal was dismissed [Kostrzewa v. Southern Electric Authority of Queensland [1] ]. He made no application to that Court for any order which would include the right to amend. However, we were told that at some stage after the commencement of the present action he commenced an action against his employer.

Both the primary judge and the Full Court have dealt with this matter on the footing that the definition of owner as it appears now in The Inspection of Scaffolding Acts was applicable in the present case. That course would seem to have been unwarranted as it now appears that the Regulation upon which the appellant as his case is pleaded must necessarily rely is a regulation which was made in 1915 under The Inspection of Scaffolding Acts as they then stood. Thus it is to the Acts in their 1915 form that one must look for the interpretation of the Regulation as well as for its validity if that comes in issue.

The Regulation consists of seventeen sub-regulations. The one presently in discussion is sub-reg. (iii) of reg. 16 and it is in these terms:

(iii) When any building or structure is in the course of erection, repair or structural alteration, it shall be the duty of the owner to make proper provision for the protection of workmen and others within the building or structure or in the vicinity thereof by boarding over all well-holes, staircases, or lifts, or by fixing guard rails down all the stairs and across all landings and well-holes, or by adopting such other means for that purpose as may be directed by an Inspector, and by keeping such boarding and guard rails in position as long as any risk of an accident would be incurred by the removal of such protection.

All the other sub-regulations of the Regulation can be seen quite clearly to relate to scaffolding and gear. The question which is central to this appeal and to the fate of the appellant's cause of action is the meaning of the word "owner" in the sub-regulation I have quoted. Although the sub-regulation has been amended in the course of the years succeeding its original promulgation it has never been remade; thus its meaning will be the same as that which it had in 1915 except to the extent to which any amendment may have altered it. The only amendment has been the addition of the word "structure" where it now appears. The addition of that word did not affect the meaning of the sub-regulation so far as the present matter is concerned.

It is to the definitions as they stood in the Acts of 1915 that one must turn in order to determine the meaning of the word "owner" in the sub-regulation. The contesting views are that of the appellant that it means the owner of the building or structure and that of the respondent that it means the owner of the scaffolds or scaffolding. The definition of "owner" as in the Acts of 1915 is as follows:

The owner of any scaffolding and the mortgagee, lessee, hirer and borrower thereof, and any overseer, foreman, agent, and person having the control, charge, or management thereof.

Quite apart from the exclusive nature of this definition, a perusal of the statute in its 1915 form shows quite clearly that it was concerned only with scaffolding and gear and with obligations laid upon the owner of the scaffolds and gear. But, once it is realized that the 1915 definition is the appropriate definition of "owner" to be applied to sub-reg. (iii) of reg. 16 in order to determine its meaning there is no room, it seems to me, for any doubt that the appellant's alleged cause of action must be denied. The sub-regulation read with the appropriate definition of "owner" most clearly lays an obligation only upon the owner of the scaffolding. The respondent was not the owner of the scaffolding. Its ownership of the land in relation to sub-reg. (iii) was therefore quite irrelevant. Being of this opinion, I have no need to consider whether or not the regulation is valid. Indeed the respondent, upon the construction which I am prepared to give the sub-regulation, did not contend that it was. Nor do I find any need to discuss whether or not the Supreme Court was correct in its analysis of the definition of "owner" as it now appears in the Act. It is sufficient for me to say that that definition is irrelevant to the construction of sub-reg. (iii) of reg. 16 which was made in 1915 under the authority and in the context of the Act as it then stood.

The appellant asked that in the event that the Court was not prepared to accept his construction of sub-reg. (iii) some variation of the order under appeal be made to permit him to amend his proceedings so as to add a further cause of action. However, there seems to me to be several reasons why this request ought to be refused. In the first place, the request for leave to amend was not made at an earlier stage. Secondly, in any event the most the Court could consider doing would be to leave it open to the Supreme Court to grant leave to add a cause of action, a course which would involve setting aside the existing judgment. No doubt the Supreme Court by reason of its rules has power to allow the addition of a cause of action which at the time of the amendment may be statute barred but, in my opinion, such leave should not be given in the circumstances of this case. In my opinion, the appeal should be dismissed.

I agree that the owner of a building or structure in course of erection is not, as such, the "owner" referred to in sub-reg. (iii) of reg. 16, and that therefore the statement of claim discloses no cause of action against the respondent under the sub-regulation.

I also agree that an amendment should not be allowed in the circumstances, and that the proper course is to dismiss the appeal.

The question in this case turns upon the meaning of the word "owner" in reg. 16 (iii) made under The Inspection of Scaffolding Acts, 1915 to 1966 Q.. The word "owner" is defined in the Act; and the statutory definition is to be applied in the interpretation of the Regulations unless the context otherwise requires. From time to time since 1915 the definition has been altered by amendments to the Act. I do not find it necessary to approach the case by the path which the Supreme Court took. Moreover I doubt whether it is, in the circumstances, the proper path to take. When the legislature amends a statutory definition, and thereby alters or enlarges the meaning of a word in the statute, then no doubt the provisions of the statute can take on a different operation in relation to matters arising thereafter: but matters which arose and were complete theretofore are governed by the meaning the language had before it was amended. The Regulation in question in this case was made under the Act as it stood in 1915. Its words then took their meaning from that Act. That the giving of a new meaning to words in the Act, without more, can give a new meaning to Regulations which were made under the Act, before it was amended, seems to me a questionable proposition. But I do not need to discuss it, because, however reg. 16 (iii) be read, it seems to me that the appellant cannot, relying upon it, sustain an action against the respondent. If he had, or has, any cause of action arising out of the Regulation, it must I think be against the building contractor, not the building owner.

Doubtless, when a building is in course of erection upon any land, the tenant in fee simple of the land, or such other person as could properly be called the landowner, is in law the owner of the building. That is simply because buildings and other structures, completed or not completed, which have become fixtures in a legal sense belong to the landowner. When a building is being erected by a building contractor, the person with whom the contract was made and for whom the builder is doing the work is ordinarily called the "employer" or the "building owner". That is common parlance of building contracts and in the building trade. And if reg. 16 (iii) had no context or circumstances, the word "owner" might perhaps be taken to mean the building owner: but that would be to read the sub-regulation in a way that is inharmonious with its context. Moreover the word "owner" has no definite legal meaning, except in relation to chattels and choses in action. In relation to land, it does not necessarily designate the freeholder. It may denote only a person who for the time being has a right of occupancy. The circumstances may shew this to be so: e.g. Lister v. Lobley [1] ; Woodard v. Billericay Highway Board [2] . In reg. 16 (iii) "the owner" means, I think, the person who is in control of the building operations and of the scaffolding and building gear in use there and who has lawful possession of the site for the purpose of carrying out the work. He is either the actual owner of the scaffolding in use or he is, within the statutory definition, as it was when the regulation was made, the "owner" of it, being "the lessee, hirer or borrower thereof" or "the person having the control, charge and management thereof".

(1837) 7 Ad. & E. 124 [112 E.R. 417]. 2. (1879) 11 Ch. D. 214.

The wording of reg. 16 (iii), when read with the definition of "owner" and of "scaffolding", is pregnant with problems. But the problems when they emerge in fact cannot be met by adopting a construction which, although it may seem literally satisfying, cannot stand comfortably with the rest of the Regulations, which is incompatible with their apparent purpose and which would result in the imposition of legal duties upon persons who are in no way responsible for, in control of, or concerned with the use of scaffolding.

I consider that this appeal should be dismissed. I do not think that the case is one in which it would be proper to amend the statement of claim to allege a new and different cause of action. I say nothing as to the pending action against Email Limited, the builder. It may well be that a breach of the duty prescribed by reg. 16 (iii) would give a cause of action against that defendant and that this could be asserted in that action, by an amendment if necessary.

This judgment was written by the late Mr. Justice Taylor. I agreed with it and adopt it as my own.

The question in this case is concerned with the meaning of the word "owner" in reg. 16 (iii) of the Regulations under The Inspection of Scaffolding Acts, 1915 to 1966 and it arises because the appellant, a workman employed by Email Limited in the construction of a building for the respondent, commenced an action for damages for personal injuries against the latter which it is alleged he sustained as the result of a breach of the duty created by the sub-regulation.

Regulation 16 consists of seventeen sub-regulations, all purporting to be associated with s. 11 of the Act, and sub-reg. (iii) is as follows:

(iii) When any building or structure is in the course of erection, repair or structural alteration, it shall be the duty of the owner to make proper provision for the protection of workmen and others within the building or structure or in the vicinity thereof by boarding over all well-holes, staircases, or lifts, or by fixing guard rails down all the stairs and across all landings and well-holes, or by adopting such other means for that purpose as may be directed by an Inspector, and by keeping such boarding and guard rails in position as long as any risk of an accident would be incurred by the removal of such protection.

The learned trial judge and the Full Court were of the opinion that the definition of "owner" - which appears in the Act and applies in the interpretation of the Regulations unless the context otherwise requires - does not include a building owner who has, in effect, given possession of the building site to a builder and that a building owner in such circumstances is not an "owner" within the meaning of the sub-regulation.

The appellant does not find fault with the former proposition. He agrees that the definition in the Act does not include a person in the situation of the respondent; it is merely definitive of the term "owner" when it is used in relation to any scaffolding, gear, explosive-powered tool or materials whatsoever set up or used or intended to be set up or used in connexion with building work or excavation work. When so used it is defined to mean "without limit to the ordinary meaning thereof, the mortgagee, hirer, lessee or borrower thereof, any overseer, foreman, agent, manager, or other person having the control, charge or management thereof, and any person who has contracted to carry out the building work or excavation work or, in the case of excavation work for or in connexion with any building work, the whole of such building work and in relation to any building work or excavation work in respect of which there is no such contractor, the person on whose behalf the building work or excavation work is being carried out". Then, it is asserted, in the sub-regulation "owner" is not used in relation to "any scaffolding, gear", etc. but is used in relation to a "building or structure" and, therefore, the word "owner" must bear its ordinary meaning in relation to that building or structure. That being so the duty of making proper provision for the protection of workmen and others within a building or structure in course of erection by boarding over all well-holes, staircases, or lifts, or by fixing guard rails down all the stairs and across all landings and well-holes, or by adopting such other means for that purpose as may be directed by an inspector, rests upon the owner of the building in the ordinary sense of that term.

Such a result would, to say the least, be startling; it would mean that the sub-regulation imposes the duty upon a building owner who has parted with possession of the building site and who has no right to control the building operations. Likewise it would not impose any duty upon those in charge of the building operations. Read completely in isolation the sub-regulation may, perhaps, be thought to produce this result. But the sub-regulation is found among a great many regulations which comprise Pt III - Inspection of Scaffolding - and which prescribe in great detail specifications to be observed in the erection of and the use of scaffolding of various types and for various purposes. A perusal of the Regulations which both precede and succeed reg. 16 (iii) in Pt III of the Regulations, and, in particular, of reg. 4 which prescribes that notice of intention to erect scaffolding or gear or to commence excavation work shall be given in form B by the owner - which must mean "owner" as defined - to an inspector at least twenty-four hours before erection of such scaffolding or gear or commencement of such excavation work and that no person shall erect or cause or permit or allow to be erected any scaffolding or gear and no person shall commence or cause or permit or allow to be commenced any excavation work in respect of which notice of intention to erect or commence shall not have been given, induces me to think that the word "owner" in sub-reg. (iii) means the owner (as defined) of the scaffolding used in the construction of the building. I am fortified in this view by the fact that s. 11 of the Act provides that all scaffolding and gear used in connexion therewith shall be either of a description prescribed by the Regulations or of a description approved by the chief inspector.

But, however this may be, it is clear beyond doubt that the sub-regulation does not impose any obligation on the owner of a building under construction simply by virtue of such ownership. Regulation 16 (iii) was promulgated in its present form - except for the two references to a "structure" which were added in 1953 - in 1915 when the definition of "owner", which has under-gone a number of changes since that time, was as follows:

The owner of any scaffolding and the mortgagee, lessee, hirer, and borrower thereof, and any overseer, foreman, agent, and person having the control, charge, or management thereof. The definition remained in this form until 1951 and after a further alteration in 1959 it assumed its present form in 1960. It seems quite clear that when reg. 16 (iii) was promulgated and, at least, until 1951, the word "owner" could not be understood to refer simply to the owner of a building under construction. Indeed if I thought it did I would have no doubt that the sub-regulation would have exceeded the regulation-making powers conferred by s. 27 of the Act. But holding the view which I do there is not the slightest reason for thinking that, even if the definition of "owner" has become inapplicable because it is now confined to a definition of the term when it is used "in relation to any scaffolding, gear", etc., the duty which reg. 16 (iii) imposed upon the "owner" of any scaffolding is now imposed upon the owner of a building under construction.

In my view it would not be proper to grant leave to amend in order to enable the appellant, at this stage, to pursue a fresh cause of action. Nor would it be proper to make any variation to the order of the Supreme Court to enable an application for such an amendment to be made to that Court.

I should add in conclusion that the definitions of "owner" and "scaffolding" in the Act are bound to give rise to considerable confusion in the application of the Regulations and they would seem to be overdue for revision.

[Note: The Right Honourable Mr. Justice Taylor died before the delivery of judgment in this case - Ed.]

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