Dunlop Rubber Australia Ltd v Buckley
87 CLR 313(Judgment by: Webb J)
Dunlop Rubber Australia Ltd
v Buckley
Judges:
Dixon CJ
McTiernan J
Webb JFullagar 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:
Webb J
WEBB J. If any part of the rubber mill was dangerous without the safety cord then I think the addition of the safety cord, whether it was made with the mill and as part of it or was added after the mill was constructed, could not be found to have eliminated the danger. It might be otherwise if there was a safety device which operated automatically.
It appears to have been common ground throughout that the question whether the mill was dangerous depended not merely on the nature of its construction and the method of its working, but also on the occurrence of other accidents. It is impossible to say that because an accident had happened once the machine was dangerous Hindle v Birtwhistle [F27] , at p. 195, per Wills J.). There was no submission or suggestion that this mill was so constructed and operated that even without evidence of other accidents it would have been unreasonable for the jury to find that the mill was not dangerous.
The plaintiff, the respondent here, had the onus of proving not merely that other accidents had happened but that they did so under such circumstances that a jury of reasonable men must find that the mill was dangerous. It becomes necessary then to see what was the evidence for the plaintiff on this point. It is true that the plaintiff's evidence was not contradicted by evidence for the defendant company, the appellant here. But it was still necessary for the plaintiff to prove that accidents had occurred in such numbers and under such circumstances that it was imperative that the jury should find that the machine was dangerous. Now the evidence called by the plaintiff was indefinite as to the number of other accidents and in no instance did it reveal that the accident was not wholly or mainly due to the conduct of the operative concerned. Two witnesses were called by the plaintiff to prove other accidents. One had been working a similar mill in the defendant company's factory for ten or eleven years without injury, although his clothes were caught in the mill on one occasion. How that came about does not appear. This witness also said that on a few occasions he saw operatives with their hands caught; but he added that none was injured. He could remember the name of only one man who was caught and that man was not hurt. The other witness for the plaintiff said that while operating a mill his fingers were caught and were amputated, but gave no explanation of how that occurred. That accident was in May 1950; that for which the plaintiff is claiming was also in May 1950.
Such being the evidence, and as it is common ground that evidence of other accidents was necessary to warrant a verdict for the plaintiff, I am unable to take the view that the verdict for the defendant company was "unreasonable and almost perverse": Cox v English, Scottish and Australian Bank Ltd , per Lord Davey [F28] . The evidence for the plaintiff was so indefinite as to the number and circumstances of the other accidents, and the period over which they took place i.e. ten or eleven years, was so lengthy that I think it was open to the jury to decline to find for the plaintiff. After all it was "entirely a question of degree" (Hindle v Birtwhistle , per Wills J. [F29] ).
I would allow the appeal, set aside the judgment of the Full Court of New South Wales, and restore the verdict and judgment for the defendant company, the appellant here.