Australian Iron & Steel Pty Ltd v Luna

[1969] HCA 66

HIGH COURT OF AUSTRALIA

Barwick C.J., Kitto, Menzies, Windeyer and Owen JJ.

AUSTRALIAN IRON &STEEL PTY. LTD. v. LUNA

(1969) 123 CLR 305

22 December 1969

Statutory Duty

Statutory Duty—Breach—Provision of safe means of access to place at &hich any person has to work—"Means of access"—"Place" of work—Single jobs requiring work at different points—Factories, Shops and Industries Act, 1962 (N.S.W.), s. 40*.

Decisions

December 22.
The following written judgments were delivered: -
BARWICK C.J. The appellant appeals by special leave against a judgment of the Supreme Court of New South Wales (Court of Appeal Division), by which a new trial was ordered of the third count of a declaration in an action brought by the respondent against the appellant. The respondent sued on three counts, the first for negligence in not having adequately lit the place in which the respondent worked for the appellant: the second, for breach of a statutory duty adequately to light the place at which the respondent worked and the third, for breach of a statutory duty to provide and maintain safe means of access to the place at which the respondent was to work, it being alleged that the access was unsafe for lack of adequate lighting. (at p306)

2. The first two counts went to the jury under direction to which no objection is taken. The jury returned a verdict for the defendant on each of these counts. The trial judge directed a verdict for the defendant on the third count on the ground that there was no material on which the jury could find that at the time of the receipt of the injury of which he complained the respondent was gaining access to a place at which he was to work within the meaning of s. 40 of the Factories, Shops and Industries Act, 1962 of the State of New South Wales (the Act). The Supreme Court's decision set aside this verdict and, as I have said, ordered a new trial of the issues arising under this count. (at p306)

3. The question now, in my opinion, is whether there was any evidence on which it could reasonably be held that at the time the respondent's injury was received he was going by a means of access to a place at which he was to work within the meaning and operation of s. 40 of the Act. (at p307)

4. The facts relevant to this question are not in dispute. The respondent's work was to "clay up" the couplings of a line of buggies carrying ingot moulds in a part of the appellant's works adjacent to an open hearth furnace and known as the "pit". To perform this task, the respondent had to obtain clay from a bin adjacent to the line of buggies, place it in a wheelbarrow, wheel the barrow in turn to each coupling in the line of buggies, and at each coupling place a quantity of clay out of the barrow on the coupling, thereafter covering the clay with a piece of timber. The couplings were about twelve feet apart. As he wheeled the barrow with clay in it from one coupling to the next the respondent claimed to have stumbled on some object on the floor and was injured. His case was that inadequate lighting rendered unsafe the floor on which he was wheeling the clay, using that part of the floor as a means of access to the next coupling which he had to "clay up". (at p307)

5. The learned trial judge having described the work the respondent was required to do, said:

"His place of work there was therefore an area which was circumscribed by the place where he picked up the clay and the various places in which he deposited clay on the couplings."

This was, in truth, a conclusion of fact, which, if any contrary view were possible, was a question for the jury, though, in any case, under proper direction as to the meaning and operation of s. 40 of the Act. However, it is clear from all that the trial judge said in directing a verdict on the third count that he construed the section as referring to a means of access to a place where the work assigned to the employee had to be performed in contrast to that place, and that he viewed the evidence as not permitting a conclusion that in passing from one coupling to the next pushing the wheelbarrow containing clay, the respondent was using a means of access to a place at which he was to work. No doubt he arrived at the latter conclusion by treating the place at which the respondent was to work as being at least the area which included the floor adjacent to the line of buggies to be clayed up and probably as well the area between the clay bin and the line of buggies. The Supreme Court was of opinion that there was evidence on which the jury could find that in moving along the line of buggies the respondent was relevantly using successively a means of access from one coupling to another. (at p307)

6. The appellant's counsel, as it seems to me, did not contest the view that a distinction must be maintained between a place at which a person has at any time to work and the means of access to that place. Therefore, although some question has been raised in the reported cases and in a text book as to whether the same area or place can at the same time be a place at which work is to be done and a means of access to that place, we are not asked to decide this case on the footing that such an identity in point of fact obtained in this case. However, for my own part, whilst of course what at one time in relation to some item of work may be a means of access, may at other times in relation to some other item of work be a place at which that work is to be done, I am unable as at present advised to conceive a case where the same area or place is at the one time in relation to the item of work both the place at which such work is to be done and a means of access to that place. To my mind the statute depends for its operation upon the maintenance of the distinction between the place at which work is to be done and the means of access to that place. (at p308)

7. Two views were presented to us on this appeal. The first was that it was open to the jury to find that the respondent's work of "claying up" was not one job of work but a succession of separate jobs: i.e., one job was to fill the barrow with clay, the other separate jobs were to clay each coupling. Thus, it was said that as he moved from the clay bin to the first coupling to be clayed, and from one coupling to another he was successively gaining access to a new and separate place at which he was to work, a place distinct and separate from a former place at which he had worked, namely the site of the clay bin or of the last preceding coupling which he had clayed up as the case may be. (at p308)

8. The second view as I understand it lays emphasis on the universality of expression in s. 40. It is not a place of work to which a means of access is being used but access to every place at which work is at any time to be done. On this view, the place is identified as a place at which work is to be done by the mere fact that some work is to be done there. Consequently, if to work there, the person to do the work must move from some other place, whether or not a place at which that person has been doing work, the path to be followed during that movement is or at least may be held for that reason alone to be a means of access within the meaning and operation of s. 40. (at p308)

9. So far as concerns the first of these views, in my opinion, the respondent had one job of work which included all he did - from obtaining the clay from the clay bin until he finished the last coupling in the line of buggies. In my opinion, with due respect to the contrary opinion of the Supreme Court, each part of the operation of claying up the buggies was not a separate job of work. There is no room, in my opinion, for treating the respondent as having a number of jobs of work, or as having a primary job of work to which some other of his activities in claying up the buggies could be regarded as separate but incidental. (at p309)

10. It therefore becomes necessary to decide the validity of the second of the views I have outlined. The competition, it seems to me, is between delimiting the place at which the person is to work by the nature and extent of the job of work he is currently employed to do and delimiting that place merely by the circumstance that there at some moment of time the person is to do work. Of course, an employee may have more than one job of work to do in any given interval of time within the same general area of work such as a factory or shop or part of a factory or workshop. An employee may have but one job of work throughout a period of time or he may have several jobs of work, even several jobs of work, directed to the achievement of one overall result. Thus, the means of access, to which the Act refers, cannot necessarily be confined to a means of access to the factory or plant at which the employee is generally employed. It clearly and at least covers means within the factory or plant by which an employee moves from the place where he has performed one job of work to a place where he is to perform another job of work. The question is whether, in ascertaining whether at a given time the employee is using a means of access, rather than using a place at which he is to work, regard should be had to what I have called the job of work which he is currently employed to do, or whether it is sufficient that at one point he did some work and then moved to another point to do more work, it being irrelevant that both pieces of work were part and parcel of the same job of work, or as Lord Greene said in Hopwood v. Rolls Royce Ltd. (1947) 176 LT 514 (CA) the "one set of operations". (at p309)

11. In making the choice between these two views, it is not unimportant, in my opinion, to observe that the statute does not speak merely of "access" but of a "means of access", though, of course, a wide denotation must be possible of what may constitute such a "means". Such "means" are to be "provided" as well as maintained. Allowing for the fact that the statute is designed, speaking generally, to promote safety of working conditions, I do not think that by this section the legislature intended to impose a statutory obligation upon employers in respect of all surfaces over which an employee might move in the performance of the work he is employed to do. There must be a great range of operations in industry in which the performance of the assigned job of work requires the employee doing it to move from one place to another, places perhaps proximate to each other, or perhaps distant apart. For example, a moulder pouring moulds on a floor by means of a ladle must move from the cupola or furnace along the moulding floor to each mould in turn:and an employee breaking out the moulds, when ready for that operation, must also move about the moulding floor from mould to mould. On a large floor this may involve considerable movement. Can the floor as a whole be said to be a means of access or is it as a whole a place at which the person is to work? In my opinion, it cannot. As the contrast for which the section calls is between the place at which a job of work is to be performed and the means of access to that place, it follows, in my opinion, that for the purpose of applying this section, it is necessary to determine what was the job of work currently to be performed. The area over which the employee will reasonably be expected to range in the performance of that job of work will, in my opinion, be the place at which he is to work within the meaning and for the purpose of the application of s. 40. Having thus delineated the place at which he is to work, the question whether or not means of access have been provided to that place, and if so, whether that means of access is safe so far as is reasonably practicable can be resolved. These are of course all questions of fact to be decided under proper direction as to the requirements of the section. But the question whether there is any evidence on which a view adverse to a defendant can reasonably be entertained is a question of law: indeed that is the question of law in this appeal. (at p310)

12. In my opinion, the facts of this case will not support a conclusion of fact that the respondent in wheeling the barrow containing clay from the position of one coupling which he had clayed up to the position where he could clay up the next coupling in the line of buggies was using a means of access to a place at which he was to work within the meaning and operation of s. 40. In my opinion, it could not be held on those facts otherwise than that he was currently doing one job of work, namely, claying up the couplings of the line of buggies and that the whole area traversed by him in performing this task, including obtaining and wheeling the clay as well as applying it to the couplings was, in relation to the statutory provision, a place at which the respondent was to work. It could only be concluded, in my opinion, that he was as much at the place at which he was to work when wheeling the barrow from one coupling to another as he was when he was applying the clay to the coupling. I therefore agree with the conclusion of the trial judge and with the direction which he gave. (at p311)

13. It is advisable, however, that I say something of reported cases which touch upon the meaning of the expressions in s. 40, not of course to seek analogy in the facts with which they deal but rather to seek the principles upon which they are founded. (at p311)

14. In Hopwood v. Rolls Royce Ltd. (1947) 176 LT 514 Lord Greene, Master of the Rolls, states the matters to be determined for the purposes of applying a section in like terms to s. 40 as "what was the place at which this workman had at the relevant time to work, what was his means of access to it, and was that as safe as was reasonably practicable" (1947) 176 LT, at p 516 . As I read the reasons of the majority of their Lordships of the Court of Appeal in that case, they decided the place at which the workman was to work by determining what work he had to do. Their Lordships decided that each stage of work on the cylinder block was, to use my expression, a separate job of work to be done at a place as distinct from "one set of operations" as if it were continuously performed although not all at the same place. Their reasons, in my opinion, in reality deny the proposition that any movement from point to point in the course of doing work or for the purpose of doing some work is necessarily a use of a means of access. Had they thought this a valid approach there was no point in the careful consideration given to the nature of the work the worker had to do. This view of their decision is conformable, in my opinion, to the view of it taken in Dorman, Long &Co., Ltd. v. Hillier(1951) 1 All ER 357 (at p311)

15. It was decided in Gardiner v. Admiralty Commissioners (1964) 1 WLR 590 that passage over an article being manufactured within the general area of the factory could be a means of access to a place at which a workman had to work. It was said that the workman's duty was to boil pitch and to apply it in caulking the decks of a vessel under construction. The case was only concerned with the question whether the deck of that vessel under construction could be regarded as a means of access at all within the meaning of a section akin to s. 40. It was held that it could be so regarded. As it seems to me, it was assumed in the case that the work of boiling the pitch and of caulking the deck with pitch were separate jobs of work performed at different places at which the workman was to work within the meaning of the section. (at p312)

16. In Rolland v. United Glass Bottle Manufacturing Co. Ltd. (1959) SLT (Notes) 10 a workman employed by glass bottle manufacturers was wheeling a barrow load of crushed glass from a chute where the glass was received across the floor of a factory to a mixer in what was apparently another department of the factory. The chute at which the workman received the crushed glass allowed considerable quantities of the crushed glass to spread over part of the factory floor to be traversed by the workman in wheeling his barrow load of crushed glass. Reliance was placed on Lord Greene's judgment in Hopwood v. Rolls Royce Ltd (1947) 176 LT 514 and on the judgments in Dorman, Long &Co. Ltd. v. Hillier (1951) 1 All ER 357 to conclude that a place of work could be a means of access to another place of work. This, it seems to me, could only be true where the work to be done in the first place was not the work to be done at the second place. Lord Greene's remarks quoted in this case were as follows:

"There must be a safe means of access to the particular branch of the man's work on which at the moment he is about to engage himself. That would exclude movements taken while doing one operation or one set of operations and would confine the section to cases where it can truly be said that if a man is moving from one branch of his work to another branch of his work, his route in so doing is a means of access." (1947) 176 LT, at pp 517, 518

The Master of the Rolls in this remark seems to treat the branch or stage of work as distinct jobs of work though all directed to the accomplishment of a single result. Lord Guest's use of this quotation seems to me to indicate that his Lordship treated the work of receiving the crushed glass as one job of work and the placement of the glass in the mixer in another department of the factory as another job of work. On that footing the factory floor traversed from the chute to the mixer could be regarded as a means of access to the place where the mixer was: and nonetheless so, as Lord Guest thought on the authority of Hopwood v. Rolls Royce Ltd. (1947) 176 LT 514 because in traversing that floor the workman was doing work though a separate job of work from that which he was to do at the place to which he was gaining access. Lord Guest, consistently with the remarks of Lord Greene on which he relied, could not have considered the receipt, wheeling and delivery of the crushed glass as one set of operations. If the workman's task had been so regarded, the movement over the factory floor would not be a use of a means of access. (at p312)

17. Finally, I would mention, as supporting this view of the principles applied in Rolland v. United Glass Bottle Manufacturing Co. Ltd. (1959) SLT (Notes) 10 that in a number of cases, including Asquith L.J.'s judgment in Hopwood v. Rolls Royce Ltd. (1947) 176 LT, at p 520, first col , the contrast between the place at which work is to be done and the means of access thereto is emphasized. See for example, Dorman, Long &Co. Ltd. v. Hillier (1951) 1 All ER 357 ; Prince v. Carrier Engineering Co. Ltd. and Vauxhall Motors Ltd. (1955) 1 Lloyd's Rep 401, at p 405, first col ; Newberry v. Joseph Westwood &Co. Ltd. (1960) 2 Lloyd's Rep 37, at p 40, second col : and Taylor v. R. &H. Green and Silley Weir Ltd. (1951) 1 Lloyd's Rep 345, at p 348, first col . (at p313)

18. In my opinion, this appeal should be allowed and the judgment for the defendant on the third count restored. (at p313)

KITTO J. I am afraid I take a different view of the meaning of the section. Its concern is with the safety of a "means of access to every place at which any person has at any time to work" in a factory. Such cases as Hopwood v. Rolls Royce Ltd. (1947) 176 LT 514 and Rolland v. United Glass Manufacturing Co. Ltd. (1959) SLT(Notes) 10 establish that the means, whether it be a tract of earth or floor or a ladder or anything else, whereby a worker has to move to a place where he is to work is a means of access to that place even if, since his use of it is part of his duty as a worker, it may itself be properly described as a place where he has to work. But the section applies to such a means because of its character as a way to a destination, and the argument that is put before us in the present case is that the unsafe condition of which the worker complains was a condition of a tract of earth along which he had to pass, not to a place at which he had to work, but within an area which as a whole was the only relevant place at which he had to work. (at p313)

2. He was engaged at the time of his injury in performing a series of acts in a large building at a steelworks, housing some open hearth furnaces and covering a railway line. The acts consisted in taking a barrow to a bin of fire-clay, loading it with clay, wheeling it fifty yards or so to a train of ingot buggies some seven hundred feet in length then stationary on the railway line, applying clay to each pair of couplings or linkages by which the buggies were joined together, and then covering the clay with boards. The object apparently was to prevent splashes of molten steel from damaging the couplings. According to his evidence he received his injury after finishing the "claying-up", as it was called, of three pairs of couplings, and as he was wheeling his barrow along the ground beside the next buggy on his way to the fourth pair of couplings. If one asks whether the totality of this man's work formed a coherent whole so that it may fairly be described as a single job of work, the answer must undoubtedly be Yes ; and if one then asks what was the place where that job had to be performed the answer must inevitably be, the whole of the area that comprised the clay bin, the line of buggies and the tract of earth alongside the buggies over which the worker had to wheel his barrow as he moved from one pair of couplings to the next. (at p314)

3. But it seems to me that for the purposes of the section one is not concerned to ask these questions. The section in the plainest terms fastens upon "every place at which any person has at any time to work". I am not prepared to whittle down the generality of "every place", or the generality of "any time", for I find in the Act no warrant for doing so. In ordinary language a place at which, in a factory, a man has to work at any time is the space that at that time he occupies as he works. Lord Greene in Hopwood's Case (1947) 176 LT, p 517 referred to suggestions that had been made to show that that sort of construction can be reduced to an absurdity, and undoubtedly it can. His Lordship said that the case had been put of a man at his work having to move a foot or two in one direction in order to pick something up and move it a little way, and his solution was to regard separately each particular "branch" of the man's work and by so doing to exclude "movements taken while doing one operation or one set of operations". He did not regard the word "branch" as quite satisfactory, but thought that what he had said made his meaning reasonably clear. When one reads his language in the light of the illustration to which it was directed it is, I think, reasonably clear that by "branch" he meant the particular task of the moment, and was intending to concede that the place of such a task may of course extend, because of the movements involved in the operation or the set of operations that comprises the task, beyond the space that the man's body would occupy if it were immobile, and that therefore those movements cannot be regarded as making use of a means of access to which the section applies. He would have agreed, I imagine, in the decision in Dorman, Long &Co. Ltd. v. Hillier (1951) 1 All ER 357 , where a worker had to remove four corrugated iron sheets from a roof, and it was held that a step on to one of the sheets while the worker was passing down another after its removal was a step not upon a means of access but upon a part of the place where the work was being done ; for, as Lord Goddard C.J. remarked, it would be "too artificial to say that there were different branches of work according to which sheet he was removing at any particular moment"(1951) 1 All ER, at p 359 (at p315)

4. But in Hopwood's Case (1947) 176 LT 514 both Lord Greene and Asquith L.J. rejected an invitation to substitute "area" for "place" in the section. Lord Greene, holding that where a fitter's work was to deal with a cylinder head at his own bench, to carry it to an inspector's bench, and to deposit it there, explained what he had meant by a "branch" of the man's work by saying that "the third branch of his work - if that be the right word - was actually the act of depositing the cylinder block at the place where it was his duty in the circumstances to deposit it" (1947) 176 LT, at p 518; and he went on :

"If . . . the place of work (and be it observed that the section does not talk about areas, it talks about places) was the place where he was to perform the task of depositing this valuable and delicate piece of machinery in a suitable manner, then everything that happened until he got there happened on a means of access."(1947) 176 LT, at p 519

Asquith L.J.(1947) 176 LT, at p 520 spoke of the place where the plaintiff had to work as "the point", "the spot", where the plaintiff was to set down his load. (at p315)

5. Lord Greene was, it seems, rather too sanguine about the sufficiency of his expression "the particular branch of the man's work", for it has been understood, I gather, in a sense broad enough to comprehend the whole of a series of working activities which together constitute a coherent assignment. I do not think that his Lordship meant it in that sense at all ; and indeed the decision in Hopwood's Case (1947) 176 LT 514 itself shows as clearly as anything could that he used "branch" in a much more particular sense. What he meant is made clear, I think, by his statement of "the principle" which he took from Callaghan v. Fred Kidd &Son (Engineers) Ltd.(1944) 1 K.B. 560.:

". . . that you can have for a man's work two places of work, and if his work requires him to move from place No. 1 to place No. 2 the section entitles him to a safe means of access between those two points." (1947) 176 LT, at p 517

This I respectfully adopt, as I do Lord Greene's approval of the actual decision in Callaghan's Case(1944) 1 KB 560 There a worker who had occasion to grind a tool used first one grindstone and then moved to another only fifteen yards away, and the Court of Appeal took it for granted that the movement was to a place at which he had to work. If the trial judge in the present case was right in holding, as he did, that there was no evidence upon which, under the section, the jury could properly find for the plaintiff, the worker should have failed both in Callaghan's Case(1944) 1 KB 560 and in Hopwood's Case(1947) 176 LT 514; and he should have failed, too, in Rolland's Case (1959) SLT (Notes) 10 where a labourer's task was to load glass into a barrow at a chute, wheel it to a mixer and deposit it there, and Lord Guest held that there was a case to go to a jury on the issue whether the labourer, when he was wheeling the barrow from the chute to the mixer, was using a means of access to a place where he had to work. (at p316)

6. In my opinion it was well open to the jury in the present case to take the view that at the time of the plaintiff's injury he was moving to a place at which he had to work, namely the place where he had to "clay-up" the next set of couplings, and that accordingly the tract of earth over which he was passing in order to get from the couplings he had done to the couplings he had next to do was a means of access to a place at which he had to work. I therefore think, as did the Court below, that the trial judge was in error in taking the case from the jury, and I would dismiss the appeal. (at p316)

MENZIES J. In my opinion s. 40 of the Factories, Shops and Industries Act of New South Wales draws a distinction between a place at which a person has, at any time, to work; and, a means of access to such a place. It admits of the construction, however, that, if a worker has to work at two or more different places in a factory, his movement from one place to another in the course of his work may be by using a means of access to that other place. In other words, a person, while working, may be using a means of access to go from one place where he has to work to another place where he has to work. A passage from one room where work had to be done to another room where work had to be done would, perhaps, be the simplest example of such a means of access. Moreover, it would not cease to be so if the worker was, in the course of his work, carrying articles from one room to the other. If, however, a worker has but one place at which he has to work, then, while he is at that place and moving about in that place doing his work, he cannot be using a means of access thereto. For instance, a storeman using a step ladder to get stock from shelves in his store-room is in the place where he has to work and is not using a means of access therto. The distinction to which I have adverted is that, I think, drawn by Lord Greene, M.R. in Hopwood v. Rolls Royce Ltd. (1947) 176 LT 514, at p 517 , and applied by Lord Guest in Rolland v. United Glass Bottle Manufacturing Co. Ltd. (1959) SLT (Notes) 10 . These authorities show that a person, while working, may nevertheless be using a means of access to a place at which he has to do other work at a later time. (at p317)

2. Here there were, I think, at least two findings open to the jury upon the evidence. The first, that the respondent had but one place at which he had to work, starting from the spot where he had to fill his barrow with clay and extending throughout the whole course of his operations in pushing the barrow to the buggies, going from buggy to buggy plastering the couplings with clay and returning to his starting point. The second, that he had a number of places at which he had to work and that, as he moved from coupling to coupling pushing his barrow, although he was working, he was also moving to a place at which he had to work, and, in doing so, was using a means of access to that place. (at p317)

3. The first of these findings would take the respondent outside the section; the second of these findings would leave him within the section, so that, if the way between one coupling and the next, which he was using when he was hurt, was not as safe as was reasonably practicable, the respondent would be entitled to a verdict upon the count for breach of statutory duty. (at p317)

4. It is not for me to decide which of such findings would have been correct. It is enough that I cannot say that the latter was not fairly open to the jury upon the evidence. (at p317)

5. Consequently I consider that the learned trial judge was in error in acceding to the request to take away from the jury the count based upon breach of s. 40 and that, accordingly, the Court of Appeal was correct in ordering a new trial of that count. (at p317)

6. I would therefore dismiss the appeal. (at p317)

WINDEYER J. This is an appeal from a judgment of the Court of Appeal Division of the Supreme Court of New South Wales, given on an appeal in an action in which the now respondent was the plaintiff and the now appellant was the defendant. I shall for convenience refer to the parties as the plaintiff and defendant throughout this judgment. The plaintiff's case was that he was hurt when pushing a barrow in the course of his employment as a worker in the defendant's steel-works near Wollongong. The incident occurred more than five years ago: but the action was not commenced until June 1966 and did not come on for trial until June 1968. (at p318)

2. The plaintiff's declaration contained three counts. The first was a count in negligence couched in an expansive form. It alleged a negligent failure on the defendant's part to provide a safe system of work in its factory, with much elaboration of detail, and a negligent failure to provide safe premises, sufficient and suitable lighting, and a safe means of access to the places at which the plaintiff was required to work. (at p318)

3. The second count was for a breach of a statutory duty under the Factories, Shops and Industries Act, 1962 (N.S.W.), in that the defendant, it was alleged, did not make effective provision for lighting in the factory in accordance with the provisions of the Act. (at p318)

4. The third count - which is the matter now in question - alleged a breach of the statutory duty under s. 40 of the said Act. That section is as follows:

"There shall so far as is reasonably practicable be provided and maintained in every factory safe means of access to every place at which any person has at any time to work."

The third count thus repeated the allegation in the first count of a failure to provide safe means of access to the place or places where the plaintiff had to work. But this time it was not alleged as the result of negligence, but as breach of statutory duty. The duty is strict in the sense that it is independent of negligence: but it is not absolute; it is qualified in that it extends only to what is reasonably practicable. (at p318)

5. At the conclusion of the evidence, the learned trial judge, Collins J., directed the jury to return a verdict for the defendant on the third count. The case went to the jury on the other two counts. They returned a verdict for the defendant. The plaintiff appealed. The Court of Appeal considered that the third count should also have been left to the jury. It ordered that a new trial be had, limited to the third count. From that decision this appeal now comes to this Court - by leave, the judgment of the Supreme Court being of an interlocutory nature. (at p318)

6. Collins J., when directing a verdict for the defendant on the third count, said that he did so as he considered that the accident happened when the plaintiff "was at the place where he had to work and not on his way to the place where he had to work. He was not making use of any means of access to the place where he had to work. He was at his working place". His Honour concluded his remarks by saying:

"I feel that it is not open to a jury to find that he was injured while he was making use of means of access to a place at which he had to work and I therefore direct the jury to return a verdict for the defendant on the third count." (at p319)

7. There was no dispute as to the primary facts. All that needed to be known as to the plaintiff's work, and as to the place or places where he had to perform it, was proved. The evidence of this was before his Honour by descriptions, by measurements and by photographs. None of it was in doubt in any way. The first question in the claim based on the statute is whether in these circumstances it was for the judge or for the jury to say whether the place where the accident occurred was at that time being used by the plaintiff as a "means of access" to a place where he had to work. That question may be expressed, as such questions often are, by asking whether the matter is one of law or of fact. It is not the same as the question whether there is any evidence of a fact in issue. It is always for the court to say whether there is any evidence of an essential fact in issue. If there is the issue is to be decided by the jury. If there is not then the matter is to be withdrawn from the jury. In some cases in earlier times this was done by a non-suit. But when there is uncontradicted, full and indisputable evidence of all relevant factors, whether a particular thing is a thing of a kind referred to in a statute is not a question of whether there is any evidence of a fact. It is whether the facts being known, the thing in question is such a thing. That, I consider, is a matter for the court to decide - applying the statutory definition, if there be one, or according to the ordinary meaning of words if there is not. As illustrations of questions of that kind see Tate v. Swan, Hunter &Wigham Richardson Ltd. (1958) 1 WLR 39; Kimpton v. Steel Co. of Wales Ltd.(1960) 1 WLR 527 (at p319)

8. To say that any issue which is for the court and not for the jury to decide is, or has become, a question of law rather than a question of fact is the customary explanation of this division of functions. To my mind this really describes a conclusion of law rather than the basis for that conclusion. That is because asking what are the essentials of a finding of fact rather than a decision of law is I think to chase a distinction which is logically elusive. And it is not more easily captured by speaking of mixed question of law and fact or a question of mixed law and fact. These expressions are well known and convenient, even if sometimes they be used unscientifically. The former certainly has a long and respectable lineage, for Lord Mansfield in 1786 spoke of a "mixed proposition of law and fact": Johnstone v. Sutton (1786) 1 TR 510, at p 545 (99 ER 1225, at pp 1243, 1244); and Lord Macnaghten in 1901 used the words "mixed question of fact and law": Hoddinott v. Newton, Chambers &Co. Ltd. (1901) AC 49, at p 56 The Privy Council has spoken of "a question of mixed fact and law": Felix v. General Dental Council (1960) AC 704, at p 717 And in this Court we recently had occasion to consider and apply the phrase "a question of mixed law and fact": Da Costa v. The Queen (1968) 118 CLR 186 In the present case I can avoid going into the refinements and distinctions of this much discussed topic. These are revealed in the thoughtful and learned articles in the Harvard Law Review and by Mr. Wilson's article in 26 Modern Law Review (1963), 609, where they are mentioned. It is I think enough in this case to follow statements in leading cases in which the classification has been applied. The question then seems to me to be simply whether his Honour's conclusion that the place here was not a means of access was correct. If it was, there is no case for a new trial. If it was not and the place was a means of access, then there must be a new trial but not to decide whether it was a means of access. That was for the court. The jury could only be asked to say whether it was as safe as reasonably practicable. I hope to make plain now why I take this approach to the question. (at p320)

In Farmer v. Cotton's Trustees(1915) AC 922, at p 932, Lord Parker of Waddington, speaking of the distinction between questions of fact and questions of law, said:

"The views from time to time expressed in this House have been far from unanimous, but in my humble judgment where all the material facts are fully found, and the only question is whether the facts are such as to bring the case within the provisions properly construed of some statutory enactment, the question is one of law only." (at p320)

10. That passage has been followed in Australia. Jordan C.J. referred to it as stating the law: McPhee v. S. Bennett Ltd. (1934) 52 WN (NSW) 8 In Hayes v. Federal Commissioner of Taxation(1956) 96 CLR 47, at p 51, Fullagar J. quoted it and said:

"The 'facts' referred to by Lord Parker in the passage quoted are the facta probantia. Where the factum probandum involves a term used in a statute, the question whether the accepted facta probantia establish that factum probandum will generally - so far as I can see, always - be a question of law." (at p320)

11. An earlier illustration of the application of this principle is Hoddinott v. Newton, Chambers &Co. Ltd. (1901) AC 49, where the question, which reached the House of Lords, was whether a building was being constructed or repaired by means of a scaffolding. Lord Macnaghten(1901) AC, at p 56 said that whether a temporary staging was a scaffolding, within the meaning of the Act there under consideration, was not a mere question of fact on which the finding of the county court judge was final. It was a question of law on which the Court of Appeal was bound to express an opinion: see too Bagnall v. Levinstein Ltd.(1907) 1 KB 531, at p 539 Similarly in Great Western Railway Co. v. Bater(1922) 2 AC 1, at p 30 where Lord Wrenbury said that, facts being found, "the question for the Court was whether, upon those facts, Mr. Hall held an office or employment of profit within the meaning of the Act. That is a question of law". That a thing is a means of access to a place is, no doubt, a fact. To say that it is is to state a fact, inferred from a knowledge of primary facts. Nevertheless when all relevant facts are established, an incorrect conclusion therefrom can amount to an error in point of law. Then, to quote Lord Radcliffe in Edwards (Inspector of Taxes) v. Bairstow:

"I do not think that it much matters whether this state of affairs is described as one in which there is no evidence to support the determination or as one in which the evidence is inconsistent with and contradictory of the determination, or as one in which the true and only reasonable conclusion contradicts the determination. Rightly understood, each phrase propounds the same test. For my part, I prefer the last of the three, since I think that it is rather misleading to speak of there being no evidence to support a conclusion when in cases such as these many of the facts are likely to be neutral in themselves, and only to take their colour from the combination of circumstances in which they are found to occur." (1956) AC 14, at p 36 (at p321)

12. In the present case the relevant facts, which are not in dispute, must, it seems to me, properly lead to one conclusion. Either the part of the factory floor where the accident occurred was a means of access to a place where the plaintiff had to work - or it was not. Of course, different answers might be given to that question by different persons. Different answers to similar questions have been given by judges. Judges often, all too often some people would say, differ in their answers to a question of law, but that does not mean that the question was one for a jury. Whether the plaintiff was using a "means of access" within the meaning of the statute, the primary facts not being in dispute, was no more a question for the jury than, for example, whether the place was a factory. I agree with the learned President of the Court of Appeal Division of the Supreme Court that it was a matter for the trial judge to determine as a matter of law - his finding being of course subject to appeal. If he had determined that it was such a means of access then it would be for the jury to say whether it was as safe a means of access as it was reasonably practicable to provide and maintain. That is a question of degree. Such questions have many times been said to be questions of fact. They fall to be determined by the tribunal of fact, whether judge or jury, whose finding cannot be reviewed unless it was based upon some error of law, such as lack of any evidence to sustain it: see e.g. Carr v. Mercantile Produce Co. Ltd. (1949) 2 KB 601, at p 606 ; Edwards (Inspector of Taxes) v. Bairstow (1956) AC, at pp 33-35 ; Payne v. Weldless Steel Tube Co. Ltd. (1956) 1 QB 196 . The distinction between asking whether a thing is of a particular genus of things, and asking whether if so it has some characteristic, not determinable by purely objective criteria, may not be altogether logically satisfying: but it is, I think, recognized by authority; and it embodies a workable principle. (at p322)

13. The work which the plaintiff had to do and on which he was engaged at the time of the accident was to take clay in a barrow to the couplings between each of the train of "buggies", as they were called, meaning I assume bogies, standing on a railway line beside the factory floor, and there put clay upon the couplings. Having put clay on one coupling, the plaintiff would move his barrow some twelve feet to the next to put clay upon it. I cannot see this work as a series of separate tasks to be performed at separate places twelve feet apart. I cannot accept the proposition that each time the plaintiff moved, pushing his barrow from one coupling to the next, he was using a means of access to a new place where he had to work. It seems to me that he was throughout engaged on a single task, putting clay on the couplings, to be carried out at one place of work. The Act clearly contemplates that a means of access to the place at which the worker has to work is something separate from that place. As an abstract proposition the place of a man's work at one time may be the means of access to another place where he has to work at another time. I understand that, but I cannot think that it can be said of this case. Originally a means of access to a place ordinarily meant I suppose some thing, like a ladder, a staircase, a gangplank, by which the worker got to his work-place. Doubtless it can be a passageway or a particular part of the factory floor which he must traverse to get to his work. But it must be identifiable as a place distinct from the place where he has to work. In the Court of Appeal it was apparently thought that, because the object to be attained by the work the plaintiff was employed to do was that the couplings would be covered with clay, therefore his bringing clay to a coupling, for the purpose of putting it on it, was an ancillary or subsidiary operation. Doubtless it is necessary, in some contexts and for some purposes, to consider what is "the main substantial work which a person is employed to do" and whether "one part of the employment is merely subsidiary or incidental to another part which is the main or substantial part": I take those phrases from the speech of Lord Morris in J. &F. Stone Lighting &Radio Ltd. v. Haygarth (1968) AC 157, at pp 176, 177 . But once the plaintiff had arrived at the train with his barrow-load of clay the work of putting clay on the couplings necessarily involved taking his clay from one coupling to the next. He had to do this as part of his work. I am unable to accept the idea that he had two tasks, one ancillary to the other: and I do not think it reasonable to say that he had as many separate tasks as there were bogies. In moving along the train he was not going each time to a new place where he had to work or to a new branch of his work. He was all the time working at the place where he had to work at the work that he had to do there. It was work which involved, as indeed most work does, more than one operation; but it was all "one set of operations", to use a phrase Lord Greene M.R. used in Hopwood v. Rolls Royce Ltd.(1947) 176 LT 514 (at p323)

14. In my opinion the learned trial judge rightly, as a matter of law, withdrew the count in question from the jury. (at p323)

15. In reading the judgments in recent cases in the United Kingdom which bear upon this topic, it is important to notice the distinction between s. 29 (1) of the Factories Act, 1961 (U.K.) and the New South Wales section applicable in this case. The New South Wales provision - s. 40 of the Factories, Shops and Industries Act, 1962 - is derived from an older model. It is restricted to the safety of means of access to the work-place and says nothing as to the safety of the work-place itself. Provided this be borne in mind, some of the British cases are helpful as illustrations of the effect of the provision about means of access: but none of them compels us to a conclusion in this case. Each depends upon its own facts and the facts of one case cannot by a process of analogical reasoning be used to determine the meaning of the statute. Therefore I say only that the decision of the Court of Appeal in Taylor v. Coalite Oils &Chemicals Ltd. (1967) 3 KIR 315 , is instructive because of its recognition that the same place cannot be both a plaintiff's place of work and his means of access thereto at the same time. This does not mean that the spatial limits of the means of access to the place where a person has to work must be precisely ascertainable. Nor does it follow that that place itself must be ascertainable and definable by metes and bounds. Both the means of access and the place of work to which the Act refers are in a factory. The place of work must be a part of the factory premises. Descriptions of a place by reference to activities carried on there have proved troublesome when a precise localization of the activities is necessary in order to ascertain the bounds and limits of the place. Powell v. Kempton Park Racecourse Co. Ltd. (1899) AC 143 , is a classic illustration of the difficulty. But that problem is not involved in the question in this case. The question is simply whether when the plaintiff was hurt as he alleged he was already at a place where he had to work or was only gaining access thereto. I think that Collins J., the trial judge, was right in holding he was already there and in holding that he was not using a "means of access" within the meaning of the Act. That being so, I consider that there is no issue which could properly have been submitted or which could now properly be submitted to a jury. I would therefore allow the appeal. (at p324)

OWEN J. The case is one in which the plaintiff claimed damages for personal injuries received while working for the defendant in the latter's factory. The work which he was employed to do consisted of filling a wheelbarrow with clay from a bin in the factory, wheeling it to a line of "buggies" and there covering with clay the couplings by which each "buggy" was attached to its neighbour. As he finished covering one set of couplings, he would wheel the barrow some twelve or fifteen feet to the next set and cover that set with clay and so on until all the couplings had been covered. He said that while wheeling the barrow from one set of couplings to the next, he tripped over a piece of slag or some other substance lying in the pathway along which he was wheeling the barrow and was injured. He sued the defendant in three counts and on the first and second counts the jury found for the defendant. The third count was based upon a breach of the statutory duty imposed by s. 40 of the Factories, Shops and Industries Act, which provides that:

"There shall so far as is reasonably practicable be provided and maintained in every factory safe means of access to every place at which any person has at any time to work."

At the trial it was contended on his behalf that in wheeling the barrow-load of clay from one set of couplings to another he was using a means of access to a place at which he had to work, namely the next set of couplings, and that that means of access was unsafe because of the existence on it of the material over which he tripped. (at p325)

2. The learned trial judge was of opinion that the only finding open to the jury was that at the relevant time the plaintiff was at a place at which he had to work and not using a means of access to such a place. Accordingly he directed a verdict for the defendant on the third count. The Court of Appeal took the view, however, that it would have been open to the jury to find that in wheeling the barrow from one set of couplings to another the plaintiff was using a means of access to a place at which he had to work, namely the next set of couplings on which he was to put the clay, and accordingly ordered a new trial to be had. From that order the defendant has appealed by special leave. (at p325)

3. Whether the order which their Honours in the Court of Appeal made was correct seems to me to depend upon whether it would be open to a jury to find that the plaintiff, when moving from one set of couplings to the next, was "moving from one branch of his work to another branch of his work" as opposed to a movement made by him "while doing one operation or one set of operations", to adopt the words of Lord Greene M.R. in Hopwood v. Rolls Royce Ltd.(1947) 176 LT 514, at pp 517, 518. It may be that if the plaintiff had been injured while wheeling the barrow between the clay bin and the line of "buggies" the finding would have been open that he was using a means of access from one branch of his work to another branch notwithstanding the fact that the pathway between those two points was a place where he had to work and was in fact working by wheeling the barrow along it. On that I express no opinion. But it seems to me that when he reached the line of "buggies" and began to put clay on the couplings the only reasonable conclusion is that in moving from one set of couplings to another with the load of clay and putting the clay on each set of couplings as he reached it, the plaintiff was performing one set of operations and not moving from one branch of his work to another. (at p325)

4. Counsel for the respondent placed much reliance upon the decision of Lord Guest in Rolland v. United Glass Bottle Manufacturing Co. Ltd. (1959) SLT (Notes) 10 . There the workman's task was to load a barrow with crushed glass at a chute, wheel it to a mixer and there empty the load into the mixer. He was injured while wheeling the barrow from the chute to the mixer and claimed that the floor between the chute and the mixer was a means of access to the mixer, a place at which he had to work. Lord Guest, after referring to what the Master of the Rolls had said in Hopwood's Case (1947) 176 LT 514 , held that there was a case to go to a jury. I assume that he did that because he thought it would be open to a tribunal of fact to find that the plaintiff was moving from one separate and distinct branch of his work, namely filling the barrow at the chute, to another separate and distinct branch of his work, namely emptying his load into the mixer, and was not merely carrying out one set of operations but that cannot, I think, be said of the present case. (at p326)

5. I would allow the appeal. (at p326)

Orders

Appeal allowed with costs. Order of the Supreme Court of New South Wales set aside and in lieu thereof order that the appeal to that Court be dismissed with costs.