R v Henrickson and Knutson [1911] HCA 56

R v Henrickson and Knutson [1911] HCA 56 - HCA 1911 case summary — Zoe

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authorized by law to execute the work, and that consequently no & Kyurson. cause of action arose either against them or their agents, the grmtn o. respondents in this action, for any injury caused by the mere execution of the work, apart from any negligence in the execu- tion; and it seems to have been assumed that that was the law, and that all that was necessary, therefore, to afford a com- plete defence to the action was to prove that the Government had such an authority. The Statute relied upon was the Public Works Act 1902, which provides (sec, 11) " The Governor by Order in Council, may authorize the Minister to undertake, construct, or provide any public work subject as to railways to Section 96, and such authorization shall be deemed an authority to such Minister by and under this Act." It seems to have been assumed that as soon as an Order in Council is made under that section authorizing the construction of a public work, anything done in pursuance of the order is not actionable unless there is some negligence or default in the manner of the execution; and the question principally litigated in that action was whether there was such an Order-in-Council in fact. The point taken was a rather curious one. Evidence was given before the learned Judge to show that an Order in Council is a formal document drawn up in a particular form and promulgated in the Gazette. No such document was formally drawn up in this case ; the only written record of the proceedings of the Governor in Council being a recommendation made to the Governor with his approval written upon it in Council. Those who are familiar with the practical working of Executive Government in the Australian States know that, probably, in more than ninety-nine per cent. of cases in which Orders in Council are made they are not formally drawn up. The only record kept is a copy of the recommendation itself and of the approval. Therefore, so far as the question of fact goes, I have no doubt that there was an Order in Council in the sense in which that term has always been understood in Australia. But when we come to look at the

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Cohney; but that such damage was not occasioned by any wrongful act or default on the part of the petitioners in the execution of the work. Then paragraphs 2 (a) and 2 (b) alleged; 2 (4) "By the said contract the Minister for Publie Works impliedly covenanted that he had the right to have the said works constructed and that he would indemnify your petitioners _ for any loss or damage accruing to them through the perform- E ance of the said contract by them;" 2 (b) "In fact the said Minister had no such right, and the execution of the said works was unlawful and created a public nuisance." The substantial - point intended to be made on those pleadings was apparently that the Government had impliedly contracted that they had obtained a proper Order in Council under the Publie Works Act which would have offered absolute immunity from any action except for negligence; and a question was referred to the Full Court on that point and decided by them. An attempt was made at the Sittings of this Court here last year to have that decision re- viewed, but the Court for reasons given declined to entertain the matter. The Crown do not now set up the Public Works Act as conferring complete immunity from action. The petitioners' claim, therefore, now rests upon the doctrine which was thus laid down by Lord Halsbury in Shefield Corporation v. Barclay (1): "In Dugdale v. Lovering (2) Mr. Cave, arguing for the plaintiff, put the position thus : - 'It is a general principle of law when an act is done by one person at the request of another which act is not in itself manifestly tortious to the knowledge of the person - doing it, and such act turns out to be injurious to the rights of a third party, the person doing it is entitled to an indemnity from him who requested that it should be done.' This though only an argument of counsel was adopted and acted upon by the Court, and I believe it accurately expresses the law. Qualifications have been constantly introduced into the discussion which I think - have led to some confusion ; they are not really qualifications of the principle here enunciated at all, but the expression of prin- : ciples which would render the application of the principle in question erroneous. One qualification is that there is no right of contribution between tortfeasors; and the other is to distinguish

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The other stipulation relied upon is a provision in the specifica tion, which, of course, is an enumeration of the work to be done under the contract. Clause 12 is in these terms, " All buildings, walls, fences, and works of any description that it is found neces- ury to remove or that may be disturbed through the operatio of the contractor, shall be replaced or repaired at his sole cost and left, at the completion of the works, in their original order - and condition." The injury in the present case was the disturb ance of the foundations of Mrs. Cohney's buildings ; a disturb- ance to such an extent that some of the walls had to be rebuilt. - It is contended that those facts bring the case exactly within the terms of the stipulation, that it is a case of buildings and walls _ which were disturbed through the operations of the contractor. I quite agree that in a particular context that might be the plain and necessary meaning of the words, but you must always look _ at the context. On referring to the whole of the specification it appears that this clause 12 is one of a group of provisions, to one or two of which I will refer. Clause 7 provides for the Govern- ment giving the contractors access to the site of the works. The works to be executed, being a drain extending over a considerable area, were not contined to streets, but would necessarily go - through private property. It was therefore stipulated that, for _ the purpose of sinking shafts on lines of streets and on private ground, the contractor should have temporary possession of a specified area on the site of each shaft, with the implied obliga- tion on the Government to put him in possession of that land and - to acquire the right of possession from the private owners; and - there are other provisions in the same clause on the subject. - Clause 10 provided that due care should be taken by the con- tractor in the event of his making excavations under or near a railway or tramway. Clause 11 required the contractor to pro- vide temporary bridges, footways, flumes, &., over watercourses, - open trenches, and underneath railways, tramways, roads, streets, and footpaths so as to prevent interruption to traffic. He was. also to provide temporary fences and barriers for the protecti of the public. Then comes clause 12, "All buildings, wa

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fences, and works of any description that it is found necessary to H.C. oF A. remove, or that may be disturbed through the operations of the 18 contractor, shall be replaced or repaired at his sole cost and left, Pa2 Crown at the completion of the works, in their original order and con- 'Hawarexedir dition." Read in their place, and with what has gone before, these & Knutson. words appear to bear a more limited meaning than they might grimtn o be capable of bearing in a different context. In a later clause - 15 - headed "Temporary Timbering," it is provided, amongst other things, that the contractor must "execute whatever may be required to prevent any buildings or other superstructures, roads and other surfaces over and adjacent to the line of drain or sewer from settling, cracking, being shaken, slipping, or falling in, and to prevent any portion of the floors from slipping," and so on; and he is to do this at his own cost until the completion of the work. Finally, clause 43 provides that upon completion of the work the contractor must remove from the Government, muni- cipal, and private property all temporary buildings, &., and must also remove all surplus earth and rubbish and leave the works in clean condition to the entire satisfaction of the executive engineer. 1 think that the word "disturbed," although capable of bearing the wider sense contended for, is an apt word to describe such interference with structures or works, gas pipes, water pipes, &c., on the actual site of the drainage works, as is incidental to the execution of the work, as distinguished from removal of build- ings dealt with by the first part of the clause. The word "yepair," again, is an apt word to express what is to be done in such a case. Again the word "left" in the stipulation that the buildings that may be disturbed shall be repaired by the con- tractor and " left in their original order and condition" seems to assume a temporary possession or control during the contract, and which the contractor will relinquish on its completion. On the whole, therefore, I have come to the conclusion that this stipulation refers only to such disturbance as is incidental to carrying out the work as a work, and has no reference to damage in the nature of disturbance caused to the property of private owners over which the contractor has no control. I think, therefore, that the express qualification set up by. the Govern-

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authority under sec. 11, I agree, however, that, even if th e authority is sufficient, it does not necessarily relieve the Gover ment or the contractors from all responsibility except for negli gence. As to that, no question at present arises because the Crown does not deny its liabity for injuries resulting from the carrying out of the work, even though its operations were carried on without negligence, On this appeal, therefore, we need not consider either of the matters to which I have referred, because the respondents, relying on an allegation in their petition of right, have rested their case upon another ground in their argument before this Court. They contend that, having carried out the work without negligence, they are entitled to be indemnified - against all damages and costs which they have become liable to _ pay under claims lawfully made against them in respect of the work, and they rely upon the principle laid down by Lord Hals- bury L.C. in Shefield Corporation v. Barclay (1). That prin- ciple is, in my opinion, applicable, and the respondent con- tractors are clearly entitled to the indemnity they are claiming in the present action unless they have by the terms of their contract disentitled themselves. Their right now to succeed therefore depends entirely upon whether or not the provisions of the con- tract upon which the Crown rely - General Condition 25 and Specification No, 12 - are such as to deprive them of the right of indemnity. As to General Condition 25, I agree that it is not applicable, though I would not limit its operation as Mr. Justice McMillan apparently thought it should be limited in the case of Jn re Henrikson and Knutsonand The Crown (2). The learned Judge - there expressed the view that the clause is limited to liability for : injury of a personal character. I think its meaning is not so re- stricted as that, but I am of opinion that it is limited to damage or injury caused by the actual operations of the contractor in the carrying out of the work, either upon the land itself or upon those portions of streets or other places which were put into his posses sion for the purpose of carrying out the contract. There are many ways in which the contractors are brought into direct contact with - the public and with individuals in performing this contract. For instance, at the crossings of streets and in doing the work in the |

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any damage is done either to person or to property they are made py: Crown liable for damage under General Condition 25, but I am clearly yeas of opinion that the condition cannot be applied to an injury of & Kxurson. this kind which though consequent on, does not arise in the per- formance of, work being carried out under the contract. Turning now to the other provision relied on, Clause 12 of the specification, T agree with the view that my learned brothers have put forward, that the section cannot be applied to the condition of things which has arisen here. Clause 12 is part of the work which has to be carried out under the contract itself and its complete per- formance is necessary for the completion of the contract itself. Until all the work included in Clause 12 is carried out to the satisfaction of the engineer, the general certificate of completion of the contract, under which the contractor is entitled to claim the balance of his payment, cannot be issued. It is, therefore, obvious on the face of it, that the work to be done under Clause 12 is part of work to be carried out in the course of the contract. The work of the contract is to be carried out on land to be put in the possession of the contractor by the engineer for the purposes of the work and the contractors have no right to enter upon any other land than that of which they are so given possession, either land originally set out under the provisions of the specification or land which in the engineer's opinion it becomes necessary to enter upon for the purpose of the work. Under General Condition 23 the contractors are prevented from entering upon private land without the consent of the owner. If, therefore, it became neces- sary, as it undoubtedly would be necessary, to enter upon Mrs. Cohney's land for the purpose of making good the disturbance complained of, it is clear that that work could not be carried out if Mrs. Cohney objected or if the engineer refused tg put the con- tractors in possession of the land for that purpose. Under these circumstances it seems to me impossible to reasonably construe the clause in question as imposing upon the contractors an obliga- tion to perform work on land outside the site of the works and on which neither the engineer nor the contractors had any right of entry except by consent of the owner. I therefore agree that

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