Between: MUMMERY
And: IRVINGS PTY LTD

Judges: Dixon CJ

McTiernan JWebb J
Fullagar J
Taylor J

Subject References:
Negligence
Occupier
Dangerous machinery
Res ipsa loquitur
Onus

Legislative References:
Factories and Shops Act 1928 (No 367) (Vic) - the Act

Judgment date: 15 August 1956

SYDNEY

Judgment by:
McTIERNAN J

The plaintiff sued the defendant for damages for personal injuries. The causes of action were laid respectively in negligence and under s. 59 of the Factories and Shops Act 1928 (Vict.). The defendant denied liability and set up the defence of contributory negligence. The only witnesses called were the plaintiff, and a doctor who spoke only of the injuries sustained by the plaintiff. The plaintiff put in evidence answers given on behalf of the defendant to interrogatories. The defendant adduced no evidence. In addressing the jury its counsel abandoned the defence of contributory negligence.

The short facts proved by the plaintiff's evidence and the answers to interrogatories were as follows. On 15th February 1954 the plaintiff went to premises on which the defendant carried on the business of selling joinery to give an order for some timber. The plaintiff had been there previously to buy timber and on those occasions he was referred by the employees of the defendant to its foreman. His name was Howden. Customers had to place their orders with him. He was not stationed in an office but customers interviewed him wherever they saw him on the premises. On 15th February 1954 the plaintiff went into the premises by a door facing the street, evidently during business hours. He saw Howden at a circular saw which was on the opposite side of a partition which ran across the premises. It appeared in the plaintiff's evidence that Howden could be seen over the partition or through an opening in it. All that the plaintiff said about the saw was that it was driven by power. No other evidence was given about it. The plaintiff began to go towards Howden. Some object, which was admitted by the defendant in its answers to interrogatories to be "a piece of wood", struck him a violent blow in the face. He was removed in an unconscious state to a hospital. The doctor's evidence showed that the "piece of wood" broke the plaintiff's malar bone, lacerated the lid of his right eye and did other severe damage to that eye. There was no evidence describing the piece of wood. The evidence of the injuries it inflicted on the plaintiff suggests that it was not unsubstantial. The defendant admitted in the answers to interrogatories that, when the plaintiff entered the premises, Howden was cutting a piece of timber with the circular saw. Nowhere was it said in the interrogatories or the evidence that the plaintiff was hit in the face by a piece of the timber which Howden was cutting with the circular saw.

The statement of claim alleged facts which were capable of establishing that the plaintiff was an invitee of the defendant and was on the premises in that right when he was injured. It also alleged negligence on the part of the defendant and its servants and gave particulars of the negligence. These were: failing to take reasonable care to make the premises safe; failing to have proper guards on a saw to prevent pieces of wood flying from it; and failing to have an enclosed building on which to carry on the sawing of timber. Another particular was: carrying on sawing in a position which caused it to be dangerous to persons who were lawfully on the premises.

The gist of the cause of action, framed in reference to s. 59 of the Factories and Shops Act, was that the circular saw was dangerous and the part of the premises where it was situated was also dangerous but the defendant failed to provide guards as required by the section. The answers to interrogatories contained an admission that the premises in question were registered as a factory under the Act.

The substance of the particulars of contributory negligence was that the plaintiff failed to take care for his own safety having regard to the fact that the area of the premises in which he found himself when he entered the premises, was potentially dangerous because it was the scene of the sawing operations which Howden was carrying out.

The learned trial judge invited the jury to answer a number of questions. The questions which are now directly material were:

"(3) Was the plaintiff at the time he was injured an invitee of the defendant?"

"(4) Did the accident occur by reason wholly or partly of the failure of the defendant company or any of its servants or agents whose duty it was as such servants or agents to do so, to use reasonable care to prevent damage to the plaintiff from unusual danger which such servants or agents knew or ought to have known?"

"(5) Did the accident occur by reason wholly or partly of the failure of the defendant company, or any of its servants or agents whose duty it was as such servants or agents to do so, to comply with the provisions of s. 59 of the Factories and Shops Act 1928 as to the guarding of dangerous machinery or the guarding of a dangerous part of the factory?"

The jury answered these questions respectively: "Yes", "No" and "Yes". Accordingly the plaintiff failed on the cause of action with respect to negligence and succeeded on that with respect to breach of statutory duty. The jury assessed the damages at PD2,500.

Pursuant to leave reserved, counsel for the defendant applied to the learned trial judge for judgment notwithstanding the verdict for the plaintiff. The application succeeded and judgment in the action was entered for the defendant.

When the jury retired to consider the answers to the questions and their verdict, counsel for the plaintiff asked the learned trial judge to widen question (4) by adding to it the words, "or through the negligence of the defendant, its servants and agents." His Honour refused the application.

The plaintiff brought an appeal to the Full Court of Victoria, which, by a majority, dismissed it. The present appeal is brought by the plaintiff against the order of the Full Court.

First, we are asked to restore the verdict for the plaintiff on the cause of action with respect to breach of statutory duty. Upon the motion for judgment, the learned trial judge decided these matters. First, that the protection given by s. 59 extends to persons who enter a factory to do business with the occupier. Secondly, that a machine which occasions danger, by throwing out materials, can be said to fall within sub-par. (b) of s. 59, if not sub-par. (a); and the area which is made dangerous by the throwing out of materials can be said to fall within sub-par. (c).

His Honour was of the opinion that Nicholls v F. Austin (Leyton) Ltd ^[F59] is not a sound guide to the interpretation of s. 59, because it was a decision upon substantially different provisions, namely, s. 37 of the English Factories Act 1937. He referred to a statement by Lord du Parcq in Carroll v Andrew Barclay & Sons Ltd, ^[F60] at p. 487, and a statement , by Lord Morton in the same case.

The third question in the motion for judgment was whether there was any evidence upon the cause of action pleaded under s. 59 fit to be left to the jury. The learned trial judge decided that question adversely to the plaintiff. I agree that the facts which appeared in the evidence and in the answers to interrogatories were not sufficient to support the cause of action in question. The learned trial judge gave powerful reasons for his conclusion on each of the two questions relating to the construction of s. 59. I agree in the conclusion that the evidence was insufficient. It follows that it is not necessary, in this case, to express an opinion on either of the questions relating to the construction of s. 59.

The facts which appeared in the evidence and answers to interrogatories pointed to the conclusion that the plaintiff was struck by a piece of the timber which Howden was sawing. Counsel for the defendant cross-examined the plaintiff to establish that, if the saw threw out a piece of that timber, its flight in the direction of the plaintiff would have been obstructed by the partition. If the jury found that a piece of wood which was thrown out by the saw struck the plaintiff, it was the only fact which could possibly have any relevance to the issue whether the saw and the part of the factory within range of it were dangerous within the meaning of s. 59. It is true that it is possible to say that a circular saw driven by power is a dangerous machine. But, in my opinion, there was no fact proved in this case sufficient in law to prove that this circular saw was dangerous. It is as consistent with the fact that the piece of wood was thrown out by the saw, if indeed it was, that what caused the motion of the saw to do this was not something normally incidental to the operation of sawing wood, as that it was. Furthermore, there was evidence that the plaintiff had been on the premises on previous occasions but he gave no proof of having seen any hazards due to the mechanical cutting of timber in the defendant's works.

The particulars of negligence conveyed that negligence was alleged only in respect of the condition of the premises. The allegation of negligence in the statement of claim meant that the defendant failed to exercise the care owed by an occupier of premises to an invitee. But if the allegation had not been limited by the particulars of negligence, it would have covered a negligent act or omission committed on the premises by a servant.

"Closely connected with the question of liability for the condition of premises is the question of liability for negligent acts on the premises. Neither the occupier nor any person is entitled to act negligently towards persons whom he knows or ought reasonably to know will be on the premises":

Charlesworth's Law of Negligence, 2nd ed. (1947), p. 210. Questions (3) and (4), which the learned trial judge invited the jury to answer, are based upon the particulars of negligence. These questions are framed in reference to Indermaur v Dames. ^[F61] The jury were properly directed as to the issues involved in those questions and the answer to question (4) cannot be set aside. As already stated, they answered question (3) in the plaintiff's favour. Indermaur v Dames, ^[F62] said Lord Wright in Glasgow Corporation v Muir, ^[F63] "does no more than lay down a special subhead of the general doctrine of negligence". ^[F64]

When the jury retired to consider the questions which the learned judge invited them to answer and their verdict, Mr. Thomson, counsel for the plaintiff, applied to the learned trial judge to widen question (4) by adding the words, "or through the negligence of the defendant, its servants or agents." The question would, if so widened, cover the issue whether the defendant, its servants or agents took reasonable care to avoid acts or omissions which an ordinary prudent man could reasonably foresee would be likely to injure a person entering the premises. Counsel for the defendant put to the jury hypotheses, which he said could account for the accident, involving no negligence in respect of the condition of the premises, but a negligent act or omission on the part of a servant. The application to widen question (4) derived strength from the consideration that if the jury accepted any of these hypotheses they would be bound to answer "No" to the question. The learned trial judge refused the application for the reason, as I understand, that from the beginning to the end of the trial the plaintiff's case was conducted solely upon the basis that what was in issue was a question of liability for the condition of the premises but not for negligent acts done on the premises. With respect I think that, in the circumstances of this case, the reason was not sufficient. A more important consideration was whether there was a case fit to be left to the jury upon the wider basis. If there was, I think that it would have been just and right to widen question (4), especially because of the use which, it is said, counsel for the defendant made of the narrow basis upon which the plaintiff placed the defendant's liability for negligence. The defendant could have been given leave to call evidence, if he asked for it, and fair terms as to costs and otherwise could have been imposed. No hardship or surprise would have been occasioned to the defendant. It appeared, from the particulars of the defence of contributory negligence that the defendant contemplated that the plaintiff might prove that the circular saw was being operated negligently and the injuries were caused by that negligence.

In Blomley v Ryan ^[F65] the defendant was given leave to add a counterclaim for rescission after the evidence was taken, although throughout the trial he had done no more than resist specific performance. The justification for giving the leave was that there was evidence that the contract was an unconscionable bargain. Upon appeal the order of the trial judge (Taylor J.) was upheld.

In the present case there was, in my judgment, a substantial case fit to go to the jury that a negligent act or omission by a servant of the defendant caused the piece of wood which hit the plaintiff to be thrown violently from some position in the defendant's premises. The learned trial judge expressed surprise that the counsel for the plaintiff had confined himself to an occupier-invitee case of negligence. Counsel acted very wisely in the interests of his client by endeavouring, even at such a late stage, to have the liability of the defendant determined upon a more promising basis. In my judgment it was not a good exercise of discretion to refuse the application to widen question (4).

The evidence and answers to interrogatories showed that the defendant conducted a joinery shop on the premises and used it as a shop for the sale of timber and joinery, and that, when the plaintiff was hit by a piece of wood, he was on a part of the premises to which the defendant admitted its customers who come to buy timber from it. The defendant was under a duty to carry on all its work on the premises with due precautions for the safety of persons whom it knew or ought reasonably to know would be lawfully on the premises.

The plaintiff adduced no affirmative evidence of negligence consisting in some breach of the duty owed in this respect to him. It follows that there was no case to be left to the jury on the basis that the defendant was liable for such negligence, unless the maxim, res ipsa loquitur, applied to the case. In my opinion the maxim did apply to it.

The premises were, according to the evidence of the plaintiff, a large tin shed. The jury would have been entitled to find that the piece of wood, which caused hurt to the plaintiff, was thrown from some place within the premises and the cause of this was some operation there carried on for the defendant by one or more of its servants. It would be reasonable for a jury to consider that, in the ordinary course of things, the plaintiff would not be hit by a piece of wood, when he was in a part of the premises to which customers who came to give orders for timber had access. If the jury entertained that view, it would be open to them, in the absence of an explanation by the defendant, to find that due precautions were not taken for the safety of the plaintiff. In Bridges v North London Railway Co ^[F66] Channell B. said:

"Again, there may be cases, as in Scott v London & St. Katherine Docks Co, ^[F67] where it is shewn that the accident is such that its real cause may be the negligence of the defendant, and that whether it is so or not is within the knowledge of the defendant, and not within the knowledge of the plaintiff. In such cases the plaintiff may give the required evidence of negligence, without himself explaining the real cause of the accident, by proving the circumstances, and thus raising a presumption that, if the defendant does not choose to give the explanation, the real cause was negligence on the part of the defendant". ^[F68]

The circumstances proved by the plaintiff, in the present case, afforded prima facie evidence of negligence, in the same way as the circumstances did in Scott v London & St. Katherine Docks Co. ^[F69] Cases of the same type were, of course, Byrne v Boadle ^[F70] and Kearney v London, Brighton & South Coast Railway Co. ^[F71]

Reliance is placed for the defendant upon evidence, that when the plaintiff was hit by the piece of wood, Howden was standing at the circular saw, and upon the answers to the interrogatories stating that Howden was then cutting timber with the saw. These matters are relied upon as affording an explanation of the cause of the accident and proving that it did not happen by reason of want of care on the defendant's side. The explanation which the defendant based upon these matters is that the piece of wood which struck the plaintiff was a piece of the timber which Howden was cutting with the circular saw. A finding by the jury would be necessary to support the explanation. It was an issue of fact whether the piece of wood was thrown out by the motion of the circular saw. The jury trying the case would have to decide this issue. It would be possible for them to make an affirmative finding. They would, of course, have to take into consideration all the circumstances which appeared in the plaintiff's evidence, including the relative positions-elicited in cross-examination-of the circular saw, the partition and the plaintiff. It would, of course, be reasonable for the jury to find, in view of these, that the piece of wood was not ejected by that circular saw. But, if the fact were that the saw did so, it would not be sufficient to show that there was no negligence, because there was no evidence that the defendant used reasonable care, or any care at all, to avoid danger to customers from pieces of wood flying from the circular saw when in action. The evidence showed that piece of wood was thrown with almost lethal violence across the premises. The distance was about thirty feet, according to the defendant's answer to an interrogatory. In any reasonable view of the circumstances, it must be said that this is not a usual occurrence to take place in a shop when customers are present, and that, in the absence of an explanation by the defendant, its real cause may have been negligence: res ipsa loquitur. Surely it is reasonable to assume that the kind of circular saw which a prudent shopkeeper would permit to be operated in his shop would not throw out a piece of wood with such violence, if due care were taken by him to see that customers would not be hurt by carrying on sawing operations on the premises. If a customer in a grocery shop were to be hit in the eye by a piece of bone thrown out by a mechanical bacon cutter or, likewise, a missile from a mechanical coffee grinder, an occurrence of that kind, unless explained by the shopkeeper, would afford reasonable evidence of negligence. Why is the present case different and the plaintiff bound to adduce affirmative evidence that the accident was caused by negligence on the part of the defendant or its servants? The mere happening of the accident affords prima facie evidence of negligence against the defendant. It lay on the defendant to rebut this by showing it had used all due care. The defendant might have shown, if it was able, that the circular saw was properly maintained, that the piece of timber which was being sawn had been inspected and did not appear to be intractable, or that there were causes beyond its control, which might have caused a defect in the saw that it had no reasonable opportunity of correcting. But the defendant chose to call no evidence. On the state of facts proved by the plaintiff the accident which caused the injuries to the plaintiff affords prima facie evidence of negligence.

For these reasons I think the appeal should be allowed on the ground that the learned trial judge ought to have added to question (4) the words which are quoted above, but on no other ground. It follows that the judgment for the defendant in the action should be set aside and a new trial be had on the issue only of negligence. I would order the defendant to pay the plaintiff's costs in the Full Court and in this Court. I would make the costs of the first trial the defendant's costs in the action.