Bourke v Butterfield & Lewis Ltd

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.