Dunlop Rubber Australia Ltd v Buckley
87 CLR 313(Judgment by: Dixon CJ)
Dunlop Rubber Australia Ltd
v Buckley
Judges:
Dixon CJMcTiernan J
Webb J
Fullagar J
Kitto J
Subject References:
Statutes
"Dangerous" machinery
Injury to employee
Liability of employer
Damages
Legislative References:
Factories and Shops Act 1912 (NSW) No 39 - s 33
Judgment date: 19 December 1952
SYDNEY
Judgment by:
Dixon CJ
DIXON C.J. This is an appeal by leave from an order of the Supreme Court of New South Wales setting aside a verdict for the defendant in an action and directing a new trial. The action was brought by an employee against his employer for personal injuries suffered while at work. His work was that of a mill hand in a rubber works and at the time of the injury the operation in which he was engaged was that of passing pieces of rubber through a rolling mill. The cause of action which at the trial was submitted to the jury was for breach of statutory duty in failing to fence a dangerous machine. The cause of action depends on s. 33 of the Factories and Shops Act 1912-1950 (N.S.W.). That section provides that the occupier of the factory shall securely fence all dangerous parts of the machinery therein. The provision then goes on to speak in detail of specified parts of machines and to require that all fencing shall be constantly maintained in an efficient state while the parts required to be fenced are in motion or use for the purpose of any manufacturing process.
The question, differently decided by this Court in Bourke v Butterfield & Lewis Ltd [F1] and by the House of Lords in Caswell v Powell Duffryn Associated Collieries Ltd [F2] , whether contributory negligence is an answer to a cause of action for a breach of statutory duty was set at rest in New South Wales by the Statutory Duties (Contributory Negligence) Act 1945 which was passed after the decision in Piro v W. Foster & Co Ltd [F3] . Section 2 (1) of that Act provides that contributory negligence on the part of a person who has sustained personal injury shall not be a defence to an action for damages for that injury founded on a breach of duty imposed on the defendant for the benefit of a class of persons of which the person so injured was a member at the time the injury was sustained.
The words "securely fenced" in s. 33 appear to be satisfied if machinery is provided with a guard which forms an adequate protection to the operator or those frequenting the factory who might otherwise come into contact with it or be exposed to the dangers which the parts of the machinery create. The word "fenced" seems to have been used traditionally in relation to tools and machine tools to describe a guard. In the sixth paragraph of the definition of the word "fence" contained in the Oxford English Dictionary the word is defined under the heading "technical uses" to mean a guard, guide, or gauge designed to regulate the movements of a tool or machine, and examples of this use are given from the early part of the 18th century. The examples, it is true, suggest that then the purpose of the "fence" was to guard rather the work or the application of the tool than the safety of the operator. In Nicholls v F. Austin (Leyton) Ltd [F4] , at pp. 499, 501, language is used by two members of the House of Lords which shows that they accepted this meaning. Lord Thankerton, speaking of the corresponding provision s. 14 of the Factories Act 1937 (Imp.) (1 Edw. 8 & 1 Geo. 6, c. 67), says that the obligation to fence is an obligation to provide a guard against contact with any dangerous part of a machine. Lord Macmillan says: "The obligation under s. 14 to fence the dangerous part of a machine, as I read it, is an obligation so to screen or shield the dangerous part as to prevent the body of the operator from coming into contact with it" [F5] .
In the application of the provision both in Great Britain and New South Wales the question has been raised whether the provision requires the fencing of a machine, if to fence it or guard it is impossible consistently with the machine being used practically. In Davies v Thomas Owen & Co Ltd [F6] , Salter J. speaking of s. 10 (1) of the Factory and Workshop Act 1901 (Imp.) (1 Edw. 7, c. 22) said: "The statute does not say that dangerous machinery shall be securely fenced if that is commercially practicable or mechanically possible. If a machine cannot be securely fenced while remaining commercially practicable or mechanically useful the statute in effect prohibits its use" [F7] . Referring to this observation, Isaacs J. in Cofield v Waterloo Case Co Ltd [F8] , at p. 374 said that the judgment of Salter J. established, in accordance with preceding cases, that the statutory obligation is absolute and must be obeyed even if the machine is, by fencing, rendered commercially impracticable or mechanically useless. But in Lewis v Denye [F9] , at pp. 931, 932, Viscount Simon L.C. made the following observations on the question: "Does s. 10 impose an obligation to provide such a degree of secure fencing for a dangerous machine as makes the machine no longer dangerous at all to a reasonably careful workman, even though this result could only be attained at the expense of making the use of the machine impracticable, and hence in effect prohibiting its use altogether?
Or is a dangerous machine to be regarded as `securely fenced' under s. 10 if the fencing protects the workman from danger so far as that can practicably be done, consistently with the machine being used? If the first of these two views were correct, this might amount to a prohibition of the use of circular saws altogether (even saws of the most modern type, such as this one, fitted with the best known safety devices), and I should be extremely unwilling to make the present case the occasion for a final pronouncement on this issue, which is so important to British industry alike in peace and in war, unless this were necessary for our decision. It is not so necessary and I desire to reserve my opinion as to the correctness of the view expressed by Salter J. in Davies v Thomas Owen & Co Ltd [F10] which would interpret the section as meaning that if a machine cannot be securely fenced while remaining commercially practicable or mechanically useful, the statute in effect prohibits its use". In accordance with the view expressed by Viscount Simon, Jordan C.J. in Inglis v N.S.W. Fresh Food & Ice Co Ltd [F11] , at pp. 81, 82, reconsidered the dictum of Salter J. in Davies v Thomas Owen & Co Ltd [F12] . His Honour's conclusion was that the obligation cast upon the occupier by s. 33 was to see that every part of the mill gearing and every cog wheel is so fenced or in such a position or so constructed as to be as safe as is reasonably possible for the careless as well as the careful workers consistently with the machine being used.
His Honour was there concerned with the third paragraph of s. 33. But his conclusion relates to the whole of s. 33. After that decision, however, the Factories and Shops (Amendment) Act 1946 (N.S.W.) was passed. By s. 2 (f) (i) of that Act s. 33 was amended so as to provide that the duty imposed on the occupier of a factory by the section should be an absolute duty in no way qualified by any other provision of the Act. Probably this provision makes it necessary to adopt the view that the impracticability of fencing, that is guarding, a machine or part of a machine, is no answer to the requirements of the section if the machine or part is in truth dangerous. In Great Britain judicial decision now appears to have brought about the same result: See Miller v William Bootham & Sons Ltd [F13] ; Dennistoun v Charles E. Greenhill Ltd [F14] ; Mackay v Ailsa Shipbuilding Co Ltd [F15] . No evidence, however, was admitted in the present case to show positively that it was not possible to provide a guard in respect of so much of the machine as was said to be dangerous.
The word "dangerous" in the section has been the subject of some judicial examination and its meaning may be taken to be settled by authority. At the one extreme dangers are to be excluded from consideration which are only the result of the deliberate action of individuals or of action which could not be reasonably anticipated. At the other extreme, it is to be recognized that the purpose of the provision is to see that the workmen are protected, even though from consequences of their own lack of care, inadvertence, mistakes or even foolishness. Further, the kind of dangers to be considered includes dangers to persons who may come into the proximity to the machine, although not at work upon it, as well as to persons who operate the machine or whose work takes them to it. In Hindle v Birtwhistle [F16] , at p. 195, Wills J. said that machinery or parts of machinery is or are dangerous if, in the ordinary course of human affairs, danger may be reasonably anticipated from the use of them without protection, and added, that the contingency of carelessness on the part of the workman in charge of it and the frequency with which that contingency is likely to arise are matters that must be taken into consideration. He described the question as entirely a question of degree. In Walker v Bletchley Flettons Ltd [F17] , at p. 175, du Parcq J. quoted the observation of Wills J. [F18] and said if he were to venture to expand a little what his Lordship said he would say, and he thought he was saying nothing inconsistent with what that learned judge had said, that a part of machinery is dangerous if it is a possible cause of injury to anybody acting in a way in which a human being may be reasonably expected to act in circumstances which may be reasonably expected to occur.
These authorities were applied to analogous language in s. 55 of the Coal Mines Act 1911 (Imp.) in Smithwick v National Coal Board [F19] . Tucker L.J. adopted from a textbook the statement that the behaviour of human beings that has to be regarded is such behaviour as is reasonably foreseeable, which is not necessarily confined to such behaviour as is reasonable behaviour, and went on to say: "An employer, of course, has to contemplate acts of carelessness, acts of negligence, and so on, but he has not to fence what would otherwise be a dangerous part of the machinery which is really inaccessible and to which no ordinary reasonable workman would be expected to go anywhere near or to come into contact with in any way" [F20] . Denning L.J. said: "I think that the test for this purpose is substantially the same as the test whether machinery is `dangerous' within the Factories Act, 1937. It is `dangerous' if it is such that it may reasonably be foreseen to be a source of injury to people who may be in the vicinity, taking them with all the ordinary infirmities to which human nature is prone. The occupier must realize that not everybody is careful: many are hasty, careless or inadvertent; some are unreasonable, or even disobedient. It may be unlikely that they will act in such a way, but it is not only the likely but also the unlikely accident against which the occupier must guard. He must guard against all conduct which he can reasonably foresee. The limit of his responsibility is only reached when the machinery is safe for all except the incalculable individual against whom no reasonable foresight can provide-the individual who does not merely do what is unlikely, but also what is unforeseeable, or, at least, not to be foreseen by any ordinary man" [F21] .
The result was summed up in a passage in the opinion of the Lord Justice-Clerk (Lord Cooper) in Mitchell v North British Rubber Co Ltd [F22] , at p. 73, a case to which it will be necessary to recur. His Lordship said: "The question is not whether the occupiers of the factory knew that it was dangerous; nor whether a factory inspector had so reported; nor whether previous accidents had occurred; nor whether the victims of these accidents had, or had not, been contributorily negligent. The test is objective and impersonal. Is the part such in its character, and so circumstanced in its position, exposure, method of operation and the like, that in the ordinary course of human affairs danger may reasonably be anticipated from its use unfenced, not only to the prudent, alert and skilled operative intent upon his task, but also to the careless or inattentive worker whose inadvertent or indolent conduct may expose him to risk of injury or death from the unguarded part?"
In the present case a direction was given to the jury giving the effect of these definitions of dangerous parts of a machine. The only issue submitted to the jury really was whether the machine at which the plaintiff was injured was dangerous, or possessed dangerous parts. The jury found for the defendant. In the Full Court of New South Wales, their Honours thought that this finding was unreasonable and set aside the verdict, ordering a new trial. The question for our consideration is whether the jury might reasonably find that the machine was not dangerous or that the parts in question were not dangerous or whether the view of the Full Court is right. This question depends upon the nature of the machine and an appreciation of the risks involved in working it. Unfortunately, no photograph or diagram of the machine was produced upon the hearing of the appeal. We were told that before the jury a model was exhibited, but this was not produced to us. With the help of counsel, however, we obtained from the transcript of the evidence what I believe is a sufficiently clear description of the machine and the manner in which it is operated.
The mill consists of two large steel rollers of equal size with their axes in the same horizontal plane. The diameter of each is about 2 feet and the length is 4 feet 6 inches. The rollers revolve in opposite directions inwards, and the distance between them may be varied. They were probably about half an inch apart. They rotate at unequal speeds, that further from the operative rotating slightly faster; the speed is, however, about one revolution in four seconds. The purpose of the rollers is to roll slabs or blocks of rubber to a uniform thickness and to join them in a continuous sheet. Slabs or blocks of rubber which are brought from the cracking machine, a rolling machine with grooves upon the rollers, are placed in the valley or bowl between the two rollers and rolled through. The rollers become heated; indeed, after a time they are water cooled. Under such heat the rubber becomes soft and pliable. Pieces of rubber weighing 30 to 40 lbs. are placed in the rollers and rolled downwards. The rubber will first fall upon a tray whence it is brought back to go through a second time. The rubber spreads out between the rollers and when it is reduced to a width and thickness which is suitable it is joined to another such piece and the whole put through the roller. The operative wears thick gloves, because of the heat of the roller. The plaintiff in giving evidence said that the pieces of rubber varied in size as they come from the cracking machine. It is brought down in a pile of rubber on a tray. The operative lifts off a lump of rubber anything from 30 to 60 lbs. in weight. A 40 lb. piece would be about 2 feet long by a foot wide.
It is a heavy piece of crude crinkled rubber as it comes from the cracking machine. The rubber is brought down in a pile on a tray and puts them between the rollers through which they would go. They would fall underneath and the operative would repeat the process until they get sufficiently heated to be joined. He puts a lump through and he follows it through with another lump and then with a third. They are flattened and warmed and as they go through again they get hot. He picks up one sheet and laps it over and puts it through again. The rollers are about breast high and the operative works with his hands over the valley between the rollers placing the rubber in the nip of the machine. It is not necessary for him to get his hands very close to the actual nip. How close is a matter in dispute, the defendant suggesting not closer than a foot and the plaintiff saying that it is necessary to go some-what closer. A former employee, who was called, said that he had been working at a similar machine for about ten or eleven years and that you must place the rubber into the nip of the machine to get it in and you must follow on with the other bit to join it up. It is a matter of how far you keep your hands away. If the rubber is hard you must go close to put it in.
Suspended over the rollers at the time of the accident was a safety cord to stop the machine in case of emergency. It is not clear from the description whether it was at right angles to the rollers or horizontally above the first of them but parallel with it.
On 11th May, 1950, the accident occurred shortly after the mill had been set in motion. It had not warmed up and the plaintiff had put through three slabs of rubber and was about to start, or had started, the operation of joining them up. He says: "When I was loading up, I put one piece down and took another piece to put it in. I threw it in on top of the other one. Somehow or other the other one folded back over and slapped my hand down, and before I knew where I was my hand was drawn in. I screamed out immediately as soon as I felt the hand going down and I snapped for the cord to stop the machine. Had I reached it there and then I could have stopped the machine but I missed it. I went completely under the cord. I screamed out and a chap right beside me snapped the stop cord. The rubber slammed against my hand and the roll was sufficient pressure to crush it. If it had gone right down between the nips, I would not have been able to pull it out immediately the machine was stopped but I was able to pull it out". The fellow employee referred to in this evidence as "a chap right beside me" was working close by and witnessed the accident. He said that he heard the plaintiff scream and swung round. His left hand had been carried up on the moving roller and was caught. He was trying to strike the safety cord over his shoulder but could not reach it. He had been carried up the machine on his right side. The employee immediately struck the safety cord and stopped the machine and the plaintiff then extricated himself.
Evidence was given of other occasions upon which workmen had had their fingers, hands or clothing caught in the nips of that or other similar machines. The effect of the evidence was that on several occasions before the accident employees had had their hands either drawn in or nearly drawn in between the rollers. One man had lost his finger in such a manner and another had had both hands caught. Still another had had his hand drawn in towards the nip but had been able to pull the stop cord. The same man on another occasion had had some of his clothing drawn into the rollers and pulled off. Upon all these occasions the stop cord had enabled the operatives to stop the machine before injury was done or before more extensive injury was done. Great reliance apparently was placed by the defendant on the stop cord as a safety device. Cross examination of the plaintiff was directed to show also that he had been warned by the foreman not to get his hands near the nip of the rollers, that if there was a guard over the bite of the rollers the machine could not be operated, and that in actually feeding the rubber into the top of the machine the plaintiff knew he should not try to push it in. Questions in pursuance of this line of cross examination were rejected by the learned judge on the ground that as contributory negligence was no defence and as liability depended on the dangerous character of the machine, such questions were not relevant.
In the Full Court, Street C.J., Owen and Taylor JJ. took the view that a finding that the machine was not dangerous within the meaning of s. 33 of the Factories and Shops Act 1912, as amended, was unreasonable and could not stand. I agree in this view. It is true that what is dangerous involves a matter of degree. It is true also that the question what may reasonably be expected in the way of conduct on the part of persons working a machine and other persons in a factory, involves a matter of fact. But upon all matters of fact and of degree the jury's determination is subject to the control of the court and if their conclusion is one which a reasonable man, who clearly understood the question to be decided, could not reach, it must be set aside. The question here is one of characterisation. Should the machine be characterised as dangerous? It appears to me that the very nature of the machine, including its capacity for carrying in the fingers, or hand, or clothing of an operative speaks for itself. Common experience shows that all machinery depending upon rollers exposes the person using them to the risk of his hands or his clothing being involved in the rollers. Common experience is here borne out by the actual experience in relation to the particular machine. It is no doubt true that the jury were at liberty to discount the evidence of previous accidents. It is also true that the jury were at liberty to take into account the fact that the machines were widely used over a long period of years and the instances given were not numerous when considered in relation to the extent and period over which the machines had been used, but, nevertheless, they remained illustrations of what might happen. It may well be true that in every case, some carelessness, inattention or folly on the part of the workman would explain the fact that he had become involved in the machine.
But that is nothing to the point. By definition a machine is dangerous if it exposes persons guilty of inadvertence, inattention, carelessness or folly to danger. How far this principle may go is shown by the case of Smithwick v National Coal Board [F23] already cited. But an example very close to this case may be seen in Mitchell v North British Rubber Co Ltd [F24] which has already been cited. That was a case of a rubber rolling mill which the tribunal of fact had held not to be dangerous. It was an electrically driven calendar for rolling rubber in sheets of uniform width and thickness. It consisted of four rollers placed one above the other revolving slowly. The bulk rubber was fed by an operative on one side into the nip of the top rollers and then by an operative on the other side into the nip below and so on. The operative injured had the latter duty and got her hand caught between the third and fourth revolving rollers while placing the rubber sheet on the fourth roller. The machine had been in use for over twenty-five years without causing an accident. The Sheriff Substitute took the view, having regard to the simplicity of the process of placing the sheet rubber in position on the fourth roller and to the slowness of the rollers in revolution, that the nip between the third and fourth rollers was not a dangerous part of the machinery and found that the factory proprietors were not guilty of contravention of s. 14 (1) of the Factories Act 1937. This finding was set aside by the Court of Justiciary (Lord Mackay dissenting) on the ground that notwithstanding the ease of the operation, the long use of the machine without an accident and the further fact that the government inspectors had never suggested that it was dangerous, the nip was a potential source of danger at all events to a worker who might be careless and inattentive.
The very emphasis laid upon the stop cord by the defendant serves to bring out more clearly the fact that some device to prevent injury was felt to be necessary. A stop cord is not the device which the statute prescribes. What it requires is fencing, that is guarding. In all of the circumstances, I am of opinion that it was not possible on the evidence for the jury to deny that the rollers in operation did not form a dangerous part of the machine.
For these reasons I agree with the decision of the Full Court and would dismiss the appeal.