Bourke v Butterfield & Lewis Ltd - [1926] HCA 38

BUTTERFIELD AND LEWIS LIMITED Personal Injury-Employer and Employee--Action for damages-Breach of statutory

duty-Dangerous machinery-Duty to fence- Defence-Contributory negligence- Limits of employer's liability-Factories and Shops Act 1912 (N.S.) W.) (No. 39 of SYDNEY,

1912), secs. 33, 53, 56. Aug. 4, 5.

Contributory negligence is not a defence to an action to recover damages MELBOURNE,

for personal injury caused by a breach of an absolute statutory duty imposed for the benefit of a class of persons of which the plaintiff is a member.

McKinnon v. Barnes, (1912) 12 S.R. (N.S.W.) 129, overruled. Limits of defendant's responsibility in such a case considered. In an action by an employee against his employer to recover damages for personal injury to the employee caused by a breach of the duty imposed upon

38 CLR 355

the employer by sec. 33 of the Factories and Shops Act 1912 (N.S.W.) to securely fence all dangerous parts of the machinery in his factory, the jury found a verdiet for the plaintiff and, in answer to questions put to them by the trial Judge, found that the injury was due to the breach of the duty and also that it was "due to the plaintiff's own negligence in the sense that but for that negligence the accident would not have happened."

Held, by the whole Court, that the plaintiff was entitled to retain his Decision of the Supreme Court of New South Wales (Full Court): Bourke V. Butterfield &Lewis Ltd., (1926) 26 S.R. (N.S.W.) 57, reversed.

APPEAL from the Supreme Court of New South Wales.

An action was brought in the Supreme Court by Arthur Reginald Bourke against Butterfield &Lewis Ltd. in which the plaintiff by the first count of his declaration alleged that the defendant was the occupier of a factory within the meaning of the Factories and Shops Act 1912 (N.S.W.) and the plaintiff was a person employed in the said factory within the meaning of the said Act that the defendant did not securely or at all fence all dangerous parts of the machinery in the factory and that, by reason of that neglect and omission of the defendant, while the plaintiff was near a certain part of the machinery which was not fenced his foot became entangled in it, whereby the foot was crushed and mutilated and had to be amputated. By the second count the plaintiff alleged that every cog-wheel in the factory was not securely fenced and was not in such a position or of such construction as to be equally safe to every person employed in the factory as it would have been if it had been fenced: that, by reason of the premises, while the plaintiff was near a certain cog-wheel which was not securely fenced, &., his foot became entangled in it, whereby the foot was crushed and mutilated and had to be amputated. The plaintiff claimed £1,000. To the declaration the defendant pleaded not guilty, and the plaintiff joined issue on that plea. The action was…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1926] HCA 38
Decision Date: 1 November 1926

CaseChat Overview and Summary

Arthur Reginald Bourke (the plaintiff) brought an action against Butterfield & Lewis Ltd. (the defendant) in the Supreme Court of New South Wales seeking damages for personal injury. The plaintiff alleged that the defendant, as the occupier of a factory, had breached its statutory duty under section 33 of the *Factories and Shops Act 1912* (NSW) to securely fence dangerous machinery. Specifically, the plaintiff's foot was crushed and subsequently amputated after becoming entangled in an unfenced cog-wheel. The jury found a verdict for the plaintiff, awarding £350 in damages, but also found that the injury would not have occurred "but for" the plaintiff's own negligence. The Full Court of the Supreme Court, following *McKinnon v. Barnes*, held that contributory negligence was a defence to an action for breach of statutory duty and, finding that the jury's answer amounted to such negligence, set aside the plaintiff's verdict and entered judgment for the defendant.

The High Court was required to determine whether contributory negligence constitutes a defence to an action for personal injury caused by a breach of an absolute statutory duty imposed for the benefit of a class of persons, of which the plaintiff is a member. The Court also considered the limits of an employer's responsibility in such circumstances and whether the jury's finding that the accident would not have happened "but for" the plaintiff's negligence amounted to a valid defence.

The High Court, by majority, held that contributory negligence is not a defence to an action for personal injury caused by a breach of an absolute statutory duty imposed for the benefit of a class of persons, of which the plaintiff is a member. The Court reasoned that the *Factories and Shops Act 1912* was enacted for the protection of employees, whether careful or negligent, and that the duty imposed by section 33 is absolute. While acknowledging that an employee's wilful misconduct or actions entirely outside the scope of their employment might disentitle them from recovery, the Court found that the jury's finding in this case did not amount to such misconduct. The Court distinguished between an action for common law negligence, where contributory negligence is a defence, and an action founded directly on the breach of a positive statutory duty, where the focus is on whether the injury occurred due to the breach. The previous decision in *McKinnon v. Barnes* was overruled.

The appeal was allowed, the judgment of the Supreme Court of New South Wales was reversed, and the verdict of the jury for the plaintiff for £350 was restored.

Orders