Dunlop Rubber Australia Ltd v Buckley
87 CLR 313(Judgment by: Fullagar J)
Dunlop Rubber Australia Ltd
v Buckley
Judges:
Dixon CJ
McTiernan J
Webb J
Fullagar JKitto 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:
Fullagar J
FULLAGAR J. I have not been able to see in this case any sound reason for interfering with the verdict of the jury. That verdict may or may not be open to criticism. But, whether it be regarded as wise and just or not, it appears to me to be an understandable verdict which was fairly open on the evidence.
It appears to have been common ground throughout that the only question in the case-if there was a question at all-was the question whether the machine used in the defendant company's factory was "dangerous" within the meaning of s. 33 of the Factories and Shops Act 1912-1950 (N.S.W.), which provides that the occupier of any factory shall securely fence all dangerous parts of the machinery therein. This question was, subject to proper guidance as to the meaning of the word "dangerous", a question for the jury to decide, and it was, in effect, the question, and the only question submitted to them.
Guidance as to the meaning of the critical word was given to the jury by Kinsella J., in terms which have not been criticised but are really too favourable to the plaintiff. The generally accepted exposition is that given by Wills J. in Hindle v Birtwhistle [F30] , at pp. 195, 196. That learned judge, dealing with a statute which, so far as material, was in terms identical with those of s. 33 of the New South Wales Act, said:"It seems to me that machinery or parts of machinery is and are dangerous if in the ordinary course of human affairs danger may be reasonably anticipated from the use of them without protection. No doubt it would be impossible to say that because an accident had happened once therefore the machinery was dangerous. On the other hand, it is equally out of the question to say that machinery cannot be dangerous unless it is so in the course of careful working. In considering whether machinery is dangerous, 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. It is entirely a question of degree." The case was a case in which injury had been caused to a workman by a shuttle flying out of a shuttle-race. Wright J., in a short judgment agreeing with that of Wills J., said:"It is a question of degree and of fact in all cases whether the tendency to fly out is a tendency to fly out often enough to satisfy a reasonable interpretation of the word `dangerous'." [F31] .
The passage quoted from the judgment of Wills J. has not entirely escaped the attentions of the glossators, but it has been, I think, generally accepted as an accurate exposition. And, if one may say so with the greatest respect, it appears to give an eminently sound and sensible explanation of what is meant by the word in question in its context. It gives to that word a liberal meaning, which is adequate for the attainment of the manifest object of the statute. At the same time it recognizes that the word itself indicates that the occupier of a factory is not to be liable for any injury caused by any machine however improbable it may have seemed a priori that the machine would ever hurt anyone. In truth there is hardly any machine or tool in human use which is not capable of inflicting bodily harm on its user. Yet there are many machines and tools which we would not instinctively describe as dangerous or regard as dangerous in any real sense-an ordinary household sewing machine, an ordinary household mangle (such as is described by Owen J. in this case), a wringer, a lawn-mower, a pick, a tin-opener. It is essentially a matter of degree, as Wills J. and Wright J. said [F32] , and essentially therefore a matter which is prima facie appropriate for a jury to decide.
Coming to the present case, the first observation I would make is that much difficulty has been experienced in obtaining anything like an accurate picture of the machine in question. It seems to me a somewhat remarkable fact that a working model was (as we were informed by counsel) provided by the plaintiff for the assistance of the jury, but was not produced to us. No clear explanation was offered as to why it was not available to this Court. No photograph or drawing or diagram was produced. We were able, with the assistance of junior counsel for the respondent, to obtain a fair understanding of the machine and the way in which it worked, but it is difficult to feel confident that one fully appreciates the position and function of the "stop-cord", or the exact way in which sheets of rubber are inserted in the machine, or the exact way in which the plaintiff's hand came between the rollers. It seems to be a fact that the jury was in a better position than this Court to understand the machine and its working, and this fact must incline one to caution, if not reluctance, when one is asked to say that the verdict of the jury ought to be set aside.
The matter of the nature and working of the machine itself was the first matter which the jury was bound to take, and presumably did take, into consideration. The other matter which they had to take into consideration was certain evidence as to prior accidents with similar machines. As to this two witnesses were called for the plaintiff. A man named Linins gave evidence that on 11th May 1950 (a very short time before the accident to the plaintiff) he was "caught in the mill" and his "fingers were taken off". That was the whole of his evidence. This, coupled with the plaintiff's own accident, would at first sight afford strong evidence that the machine was dangerous, and would clearly justify an affirmative finding. But there was no evidence whatever as to how this event happened, and much might turn on the manner of its happening. Counsel for the plaintiff having left the matter as he did, counsel for the defendant would naturally not cross-examine as to the details of the event described. But he might quite legitimately have invited the jury to take little notice of an event about which they had been told so little, and the jury might quite legitimately have accepted such an invitation.
The other witness on this aspect of the case was a man named Bell. Bell had been working for the defendant company for about twelve years: he left the company's employment very shortly after the accident to the plaintiff. For about "ten or eleven" years of that period he had been working on a "mill" similar to that which caused the injury to the plaintiff. He did not say how many such mills the company had in its factory, but he said that it had "quite a number" of them. He said that, in the period of his employment, he had seen mill operatives with their hands caught "on a few occasions". The only man whom he was able to mention by name or otherwise identify was a man named Johnson, who "did not meet with very bad injury". He said:"It is something that happens every now and again: it might happen that you are not hurt". In cross-examination he was unable to give any further details. He said that he could not "bring to recollection" any case of a man "having got an injury which cost him a finger". But he said "there have been some". Pressed with the point of view that he had been working in the factory for a long period and could not specify a single serious accident, he said (for the first time) that he had himself been "caught", but had saved himself by pulling the "stop-cord". Pressed further, he recalled an occasion on which his clothes had been caught and he had "jumped back and left his clothes there".
Now, it is quite impossible for an appellate court to say what view ought to be taken of Bell's evidence, or to say that the jury was bound to take any particular view of it. But it seems to me equally impossible to deny that the jury was at liberty not merely to discount the evidence of Bell but to regard it as false in so far as it favoured the plaintiff, and further to regard it as favourable to the defendant in so far as it showed an absence of any serious accident over a period of "ten or eleven" years in a factory which was using "quite a number" of the machines in question. The alleged episode in which Bell's clothes had been "torn off him" (to use the expression used by Kinsella J. in his charge-it is fair to say that it was not used by Bell himself) may well have carried with the jury a significance which it was not intended to carry. To me it sounds plainly incredible, though I do not know that it would have led me to reject the whole of Bell's evidence so far as it favoured the plaintiff. The jury, however, may well have taken the same view as I take of that piece of evidence, and-aided perhaps by a general impression of Bell in the witness-box-have proceeded to say that they did not believe a word of what he said as to prior accidents. They were perfectly entitled to take that view.
The fact that the defendant called no evidence was a matter which the jury might well, of course, take into account, and this aspect of the case was strongly put to them by the learned trial judge in his charge. But it was quite proper for them to deal with the case on the evidence before them, and it would not, in my opinion, have been unreasonable for them to say:"We know nothing about the accident to Linins. We find nothing reliable in the evidence of Bell except that no serious accident occurred on a considerable number of machines over a long period of years. We have, of course, the accident to the plaintiff, but, everything considered, we are not prepared to say that the machine was `dangerous' in the sense explained to us by the judge." Whether they did in fact reason in that way is beside the point. Whether I would reason in the same way is equally beside the point. The jury may well have reasoned in that way, and a verdict which may have been founded on such reasoning should not, in my opinion, be set aside.
I have not thought it necessary to discuss the rules which have been laid down relating to the setting aside by an appellate court of the verdict of a jury. I have proceeded on the basis of what was said by Dixon J. in Hocking v Bell [F33] , at pp. 498, 499. I do not myself think that the verdict in this case comes anywhere near to being so unreasonable as to be "almost perverse", and I am not able to say that the jury have "failed to perform their duty".
In my opinion, this appeal should be allowed, the judgment of the Full Court set aside, and the verdict and the judgment founded thereon restored.