Dunlop Rubber Australia Ltd v Buckley
87 CLR 313(Decision by: McTiernan J)
Dunlop Rubber Australia Ltd
v Buckley
Judges:
Dixon CJ
McTiernan JWebb 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
Decision by:
McTiernan J
McTIERNAN J. I am of the opinion that the appeal should be dismissed.
The plaintiff was employed by the defendant at a rubber mill at its factory, and in the course of operating the mill, his left hand was lacerated and the skin pulled off the fingers by the action of the mill. In an action which he brought against the defendant for damages, the jury found a general verdict for the defendant. The only causes of action presented to the jury were founded upon s. 33 of the Factories and Shops Act 1912-1950 (N.S.W.) which imposes upon the occupier of a factory a duty securely to fence all dangerous parts of the machinery therein and to maintain the fencing in an efficient state while the parts required to be fenced are in motion or use for the purpose of any manufacturing process. An amending Act (No. 17 of 1946) by s. 2 (f) (i) makes the duty imposed by s. 33 absolute.
The only count, which it is now material to consider, was for an alleged breach of duty to fence or guard all dangerous parts of the mill. The defendant's plea to this count raised the issue whether or not any part of the mill was dangerous. It was admitted upon the pleadings that the mill was not fenced. Other matters put in issue were whether the Act applied or the defendant employed the plaintiff, or the defendant had machinery in its factory. Nobody has contended that the jury found for the defendant upon any of those issues. It was also admitted upon the pleadings that the plaintiff was struck and injured by the machinery at which he alleged the defendants employed him to work. However, in argument in this Court it was contended that the jury may have been dissatisfied with the plaintiff's evidence that he was working at the rubber mill when he was injured. Having regard to the admission upon the pleading, the verdict for the defendant could not stand if the jury found against the plaintiff only upon the issue as to the cause of the injury. The breach of s. 33, alleged by the plaintiff, was that the nip of the rollers of the mill was a dangerous part of the machine. It was not denied by the defendant that there was no fence or guard to prevent a workman from putting either or both hands upon the rollers or close to the nip of the rollers while they are revolving and he is feeding the machine with rubber. The only substantial matter is whether the jury was justified in rejecting the plaintiff's proof that the nip was a dangerous part of the machine. The evidence adduced for the plaintiff consisted of evidence describing the rubber mill, the way in which the plaintiff was injured, evidence of other accidents, and medical evidence. For the purposes of this appeal the medical evidence is not material.
Owen J. who delivered the judgment under appeal, gave a summary of the evidence as to the material matters. The summary is accurate and adequate for the purposes of this appeal and I adopt it. "The machine in question consisted of two heavy power-driven steel rollers, each about 2-feet in diameter, standing chest-high above the floor, the rollers lying side by side in a horizontal plane. The rollers revolve at a rate of approximately one revolution in every four seconds; so that it would take a second for the top of the roller to make a quarter turn to the `nip' between the two rollers. The operator feeds by hand into the valley between the two rollers what are described as `slabs' of crude rubber, from 30 to 60 lbs. in weight. Except for the position of the rollers the operation is similar to that carried out by the housewife who feeds washing into a mangle. Stretched horizontally across the top of the machine and within reach of the operator is a `stop cord', which when pulled causes the machine to stop.
The plaintiff said that, on the occasion of his injury, he had fed one `slab' of rubber into the rollers and was feeding in another `slab' when part of the first `slab' `folded back over and slapped my hand down, and before I knew where I was my hand was drawn in'. He says that he screamed and reached for the stop cord with his free hand, but missed it. Fortunately, another employee was standing nearby and he was able to pull the cord and stop the machine. It should be added that in the course of the operation the rollers become heated by friction, and the operation is designed to heat the rubber and reduce it to a sticky pulpy mass so that the slabs as they are rolled will be flattened out and joined up to other slabs undergoing the same process in order to produce a continuous sheet of rubber. At the time of the injury the rollers on this machine had not become sufficiently hot to heat the rubber into the soft and sticky state necessary to complete the operation. Evidence was given that on several earlier occasions employees working, either on this or on a similar type of mill, had had their hands drawn or nearly drawn between the rollers. One man, Linins, lost his finger on one such occasion. Another employee, Johnson, had both hands caught, but escaped with little or no injury; and a man named Bell said that his hand had been drawn towards the `nip' of the rollers on at least one occasion, but that he had been able to pull the stop cord in time to escape injury. He said also that on another occasion portion of his clothing had been drawn into the rollers and pulled off him".
The defendant called no evidence and at this stage no objection is taken to the summing up.
None of the evidence adduced by or for the plaintiff at the trial was contradicted. I agree with Owen J. that the transcript of the evidence reveals nothing upon which the jury could have considered that the credit of the plaintiff or of any of his witnesses was not good. The question was whether the rubber mill, as described by the evidence was dangerous. This was a question of fact and therefore one for the jury. Owen J. applied the right test in order to decide the question whether upon the evidence which has been referred to, a jury of reasonable men could find that the machine was not dangerous. The jury were not at liberty to apply their own tests as to whether the nip of the rollers was a dangerous part of the machine. It was the jury's duty to apply the criteria contained in the directions to them on this matter.
I agree with Owen J. that a jury of reasonable men who applied those criteria could not reasonably find that the nip of the rollers was not a dangerous part of the rubber mill. Wills J. said in Hindle v Birtwhistle [F25] :"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 which must be taken into consideration".
Upon the cross-examination of the plaintiff's witnesses it seems to me to be fair to say that the defendant conceded that but for the cord which the operator could pull in case of emergency the mill was dangerous. This cord, of course, was not a fence or a guard which protected the mill hand from touching the rollers or putting his hands near the nip. It was contended that the cord was an integer of the machine and with it the nip of the rollers was not a dangerous part of the machine.
In the case of Walker v Bletchley Flettons Ltd [F26] du Parcq J. said:"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".
In my opinion it would be unreasonable for the jury to find that the mere addition of the cord reduced to any appreciable degree the possibility of the rollers or the nip being a cause of injury to a mill hand feeding it with rubber slabs.