Sheen v Fields Pty Ltd

(1984) 51 ALR 345
(1984) 58 ALJR 93

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(Decision by: Gibbs CJ)

Sheen
vFields Pty Ltd

Court:

Judges: Gibbs CJ
Mason JJ
Murphy JJ
Wilson JJ
Dawson JJ

Legislative References:
Factories and Shops Act 1960 (Qld) - The Act

Case References:
O'Connor v S P Bray Ltd (1937) - 56 CLR 464
Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees' Union (1979) - 27 ALR 367; 42 FLR 331
Warren v Coombes (1979) - 23 ALR 405

Hearing date:
Judgment date: 9 February 1984

Canberra

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Decision by:
Gibbs CJ

The appellant was the plaintiff in an action to recover damages for personal injuries suffered as a result of the alleged negligence or breach of statutory duty of the defendant, the present respondent. On 7 December 1976, while the appellant was working, in the course of his employment by the respondent, at the respondent's workshop in Mackay, a piece of steel flew into his left eye, causing blindness in that eye. At the time the appellant was replacing a set of bearings on a pump drive gearbox on a cane harvester. He was endeavouring to force the bearings onto the shaft by using a hammer and punch, and while he was doing so, a piece of steel came off either the punch or the bearings and penetrated his eye.

The learned trial judge found that it was undesirable to use a hammer and punch for this purpose in a workshop, since to do so would cause a risk of injury to the workman and possible damage to the bearings. The appellant had worked on farm machinery for 20 years, although mostly in the fields rather than in a workshop, and was accustomed to put on bearings by using a hammer and punch. He had worked in the respondent's workshop for three or four months prior to the accident, but this was the first occasion on which he had performed a task of this kind there. He said in evidence that the respondent's foreman mechanic, Mr Leach, had told him to force on the bearings with a hammer and punch. The learned trial judge rejected that evidence. He found that two methods for putting on bearings were used in the respondent's workshop, and that either method was a suitable one. The first, the preferred method, was to heat the bearings in oil; another method was to use a press. The respondent had, in its workshop, equipment for heating the bearings in oil and also had a press. The learned trial judge found that Mr Leach told the appellant to use either the press or the oil, and that the appellant chose to use his own inherently dangerous method in disregard of the foreman's instructions. The learned trial judge accordingly held that there was no basis for a finding of negligence against the respondent. On appeal, the Full Court saw no reason to disturb this conclusion.

The appellant also alleged breach of statutory duty, in that the respondent failed to supply him with safety goggles. In fact the respondent did not supply the appellant with goggles, but the appellant had his own set of safety goggles in his tool box and did not use them. The learned trial judge found that under the rules made pursuant to the Factories and Shops Act 1960 (Qld), as amended (the Act), the respondent was obliged to provide the appellant with goggles, but he was satisfied that even if goggles had been provided the appellant would not have worn them, and that the breach of statutory duty did not cause the appellant's injury. The Full Court dismissed the appeal for a different reason. It held that there was no breach of statutory duty so that the question whether, if goggles had been provided by the respondent, the appellant would have worn them, did not arise.

By the combined effect of ss 38 and 97 of the Act power is given to make rules for, inter alia , better securing the safety and health of persons employed in factories and shops, and such rules may adopt any of the standard rules, codes or specifications of the Standards Association of Australia (s 97(3)). The expression "factory" is defined in s 5(1) of the Act. No argument before us was directed to the question whether the respondent's workshop was a "factory" within the meaning of the Act: that appears to have been assumed. Rule 1 (the General Rule) of the Rules made under the Act applies to every factory or shop other than a project under construction. Clause 29(a) of r 1 provides that an owner or occupier shall ensure that the provisions of that rule are complied with or, as the case may be, are not contravened. Clause 21 of r 1 (as it was at the material time) provided as follows:--

(1)

Where there is a likelihood of injury to the eyes of an employee protection shall be provided in accordance with the SAA Standards for Industrial Eye Protection AS CZ7-1967, AS Z7-1967 and AS Z45-1967 as amended from time to time.

(2)

An employee shall wear or as the case may be use eye protection provided under the provisions of this clause.

The Australian Standards for Industrial Eye Protection (CZ7-1967, Z7-1967 and Z45-1967) issued by the Standards Association of Australia contained the following provisions amongst others:

1.1

SCOPE. This Code sets out recommended practices for the protection of the eyes of persons in industrial undertakings against hazards such as flying particles and fragments, dusts, splashing materials and molten metals, harmful gases or vapours and optical radiation.

4.1

ISSUE OF EYE PROTECTORS. When it is not possible to eliminate or to control eye hazards, personal eye protectors should be issued to and worn at all times by all employees. Eye protectors should also be supplied to any persons visiting places where eye hazards exist.

4.3

GENERAL PROTECTION. Safety spectacles provide adequate protection from most flying particles coming from work areas in front of the operator. With this protection is combined the desirable features of aesthetic appearance and comfort. The attachment of side shields provides additional protection against particles from the side.

Wearing safety spectacles when exposed to flying particles may be regarded as the minimum acceptable method of protection and an essential step in any satisfactory eye protection programme. Their general use needs to be supplemented by the ready availability of other types of eye protector designed to protect specifically against the other hazards listed in Table 1.

Safety spectacles are not designed or intended to provide protection from high energy particles. Where such protection is required it should be in the form of a face shield or hood.

4.4

SELECTION. The following factors should be considered in determining requirements for the issue of eye protectors:

(i)

The nature of the risk to the eyes.

(ii)

The condition under which the operator is working.

(iii)

The visual requirements of the task. Where tasks demand an unrestricted field of vision to ensure safe and accurate work, wide-vision types of eye protector are essential.

(iv)

The condition of the operator's eyesight:--

Any toughened glass lenses of normal prescription spectacles are not adequate as eye protectors against flying objects or particles and may even be dangerous. The best practice is to provide safety spectacles with toughened lenses ground to suit the needs of the wearer. Alternatively, the standards for eye protectors provide for special types designed to fit comfortably over ordinary prescription spectacles.

(v)

The personal preference of the wearer:--

Comfort plus appearance are usually the main factor in wearer preference. Lightness, ventilation and unrestricted vision are important considerations.

The words of cl 21(1) of r 1 indicate that that clause requires that protection in accordance with the standards shall be provided in cases where there is a "likelihood of injury" to the eyes of an employee in a "factory". The standards require that if a "hazard" exists, eye protectors should be issued, and that if the employee is exposed to flying particles, the provision of safety spectacles is the minimum acceptable method of protection.

The first question, therefore, is whether there was a likelihood of injury to the eyes of the appellant, within the meaning of the rule, in the present case. If there was such a likelihood, the respondent's failure to provide eye protectors was a breach of the duty which the rule imposed. The rule prescribes a specific precaution for the safety of the employee in a case where the employer on whom the duty is laid would, under the general principles of negligence, be bound to exercise due care, and in those circumstances "the duty will give rise to a correlative private right, unless from the nature of the provision or from the scope of the legislation of which it forms a part a contrary intention appears": O'Connor v S P Bray Ltd (1937) 56 CLR 464 at 478. It appears to have been assumed in the court below that the Act and the Rules were intended to give the employee a private right, but as will be seen it is unnecessary for us to consider whether this assumption was correct. In saying that, however, I do not intend to cast any doubt on the correctness of the assumption.

In the Full Court it was held that "likelihood" in cl 21 means "something less than probability but more than a remote possibility". I would accept that view. In other words, a likelihood is "a real or not remote change or possibility regardless of whether it is less or more than 50 per cent": Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees' Union (1979) 27 ALR 367 at 380 ; 42 FLR 331 at 346, per Deane J. However, to define "likelihood" does not decide the present case. The critical question is whether the likelihood is to be judged, as Demack J said in an unreported judgment in Moscrop v Vigilante , which he followed in the present case, "not by considering the nature of any one task but by considering the overall activities in the factory" or whether, as the Full Court thought, regard must be had to the particular task being performed by the employee in question.

The evidence shows that there were two grinding wheels in the workshop, and that it was necessary for employees using those wheels to use goggles (by which no doubt was meant safety spectables). There is no evidence, however, that the grinding wheels, or any other operation in the factory, placed the appellant in a position of hazard while he was working at the time when he sustained his injury.

In my opinion, the question whether there is a likelihood of injury is to be asked in relation to the particular work done by the employee whose safety is to be protected. Of course, the injury may result from the work of others, as well as from the employee's own activities, and in that sense Demack J was right in saying that the overall activities in the factory are to be considered. However, if he meant that because activities in one part of the factory created a likelihood of hazard to the eyes of employees there, an employee in another part of the factory should have worn safety spectacles, although that employee was not exposed to the hazard, I cannot agree with him. The Rules and Standards are intended to ensure the safety of the employees concerned, and not to insist on the observance of unnecessary precautions. The question is whether, in all the circumstances, there was a likelihood of injury from any cause to the eyes of the particular employee.

It is clear that a workman using a hammer and punch to drive a bearing onto a shaft should wear safety spectacles, because of the danger that chips of metal may fly off. On the other hand, there is no evidence, or suggestion, that an employee who put a bearing onto a shaft by one of the two other methods suggested would be exposed to any risk from flying metal. If the appellant had performed his task in accordance with the method which his employer expected him to adopt, he would not have been at risk. The likelihood of injury must be judged in the light of the circumstances which are known, or which ought to have been known, to the employer on whom the duty is cast. It would be unreasonable to construe the rule as casting an obligation on an employer to protect his employee from the consequences of his own independent decision to adopt a dangerous method of working which is different from the method he was instructed to adopt unless the employer could reasonably be expected to foresee that the employee might act in this way.

In the present case, if the appellant had done the work as the respondent expected him to do it, there would have been no likelihood of injury to his eyes. There is no evidence to sustain a finding that the respondent should have known that the appellant would do the work in the way in which he in fact did it. In those circumstances cl 21 of r 1 did not require eye protection to be afforded.

The evidence indicates that the respondent did not instruct the appellant, or its employees generally, that they should wear goggles when there was a likelihood of injury, and did not make checks to ensure that goggles were worn when necessary. In that respect, the respondent would appear to have failed to observe cl 1.4 of the Standards, which requires that an employer should take all steps necessary to ensure the co-operation of employees in the protection of their eyes by, inter alia following a planned campaign for educating employees about eye hazards that may exist in their work, and about methods of protection and by making it known as a matter of policy that all necessary eye protection equipment will be supplied and that the employee is required to wear such equipment when he is directed to do so. However, cl 1.4 of the Standards is not given statutory force by cl 21 of r 1. That clause requires protection to be provided in accordance with the Standards; it does not cast a legal duty on the employer to secure the co-operation of employees by educating and instructing them in the manner specified in cl 1.4 of the Standards.

For these reasons the respondent was not guilty of any breach of statutory duty.

The alternative claim based on negligence at common law must also fail. The question whether injury to the appellant was reasonably foreseeable raises issues similar to those raised by the question whether there was a likelihood of injury to the appellant. The circumstance which is fatal to the appellant's argument is that the respondent neither knew nor ought to have known that the appellant would do the work in a way that might expose his eyes to risk. The learned trial judge found that Mr Leach told the appellant to use either the press or the oil and there was evidence to support that conclusion. In those circumstances the respondent had no reason to expect that the appellant would employ a different method which was dangerous if eye protection was not used.

I accordingly consider that the Full Court was right in dismissing the appeal. I feel bound to add that I could not accept the finding of the learned trial judge that even if goggles had been provided the plaintiff would not have worn them. It is true that the appellant in fact had safety goggles of his own in his tool box at the time, and did not use them, but it does not follow that he would not have worn safety spectacles if they had been given to him by his employer with instructions that he should use them. However, the Full Court was right in saying that this question does not arise for decision.

For these reasons I would dismiss the appeal.