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Dunlop Rubber Australia Ltd v Buckley

Dunlop Rubber Australia Ltd v Buckley

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Case Copied 19 December 1952 43 min read

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87 CLR 313

DUNLOP RUBBER AUSTRALIA LIMITED BUCKLEY.

RESPONDENT. PLAINTIFF,

ON APPEAL FROM THE SUPREME COURT OF

NEW SOUTH WALES. Statutes-Machinery-" Dangerous -Duty to "securely fence -Absence of

"fence "-Provision of cord whereby to stop machine-Injury to employee- Liability of employer-Action for damages-Jury's verdict for employer- Reasonableness-Factories and Shops Act 1912-1950 (No. 39 of 1912-No. 21 of 1950) (N.S.W.), S. 33.

In an action for damages for injuries sustained by the plaintiff while employed by the defendant at a rubber mill at its factory, the evidence showed that the machine in question consisted of two heavy power-driven steel rollers, each about two feet in diameter, standing chest high above the floor, the rollers lying side by side in a horizontal plane. The rollers revolved at a rate of approximately one revolution in every four seconds and therefore it took a second for the top of the roller to make a quarter turn to the nip between the two rollers. The operator fed by hand into the valley between the rollers "slabs" of crude rubber, from thirty pounds to sixty pounds in weight. Except for the position of the rollers the operation was similar to that carried out by any housewife who feeds washing into a mangle. Stretched horizontally across the top of the machine and within reach of the operator was a "stop cord " which when pulled caused the machine to stop. On the occasion of his injury the plaintiff had fed one "slab" of rubber into the rollers and was feeding in another slab" when part of the first "slab" folded back and slapped down his hand which was drawn in. He screamed and reached for the stop cord with his free hand, but missed it. Another employee pulled the cord and stopped the machine. The plaintiff's left hand was lacerated and the skin pulled off the fingers. At the time of the injury the rollers on this machine had not become sufficiently hot to heat the rubber and reduce it to the sticky pulpy mass required to produce a continuous sheet of rubber. There was evidence that on several occasions during a.

87 CLR 314

period of ten or eleven years employees working, either on this or on a similar type of mill, had had their hands drawn or nearly drawn between the rollers, one such employee losing a finger. The defendant did not call any evidence. The jury found a general verdict for the defendant.

Held, by Webb, Fullagar and Kitto JJ. (Dixon C.J. and McTiernan J. dissenting), that the verdict was not SO unreasonable as to be "almost perverse" nor could it be said that the jury 'failed to perform their duty therefore the defendant was entitled to retain its verdict.

The meaning of the words "fence" and dangerous as used in S. 33 of the Factories and Shops Act 1912-1950 (N.S.W.), discussed.

Decision of the Supreme Court of New South Wales (Full Court) reversed.

APPEAL from the Supreme Court of New South Wales.

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: [1952] HCA 72
Decision Date: 19 December 1952

CaseChat Overview and Summary

This case involved an appeal to the High Court of Australia from a decision of the Supreme Court of New South Wales. The appeal concerned an action for damages brought by Daniel Thomas Buckley (the plaintiff) against Dunlop Rubber Australia Ltd. (the defendant) for injuries sustained while operating a rubber rolling machine. Buckley alleged that the machine was dangerous and that the defendant had breached its statutory duty under section 33 of the *Factories and Shops Act 1912-1950* (N.S.W.) by failing to securely fence it. A jury had returned a verdict for the defendant, but the Full Court of the Supreme Court of New South Wales set aside this verdict and ordered a new trial.

The legal issues before the High Court were whether the jury's verdict for the defendant was so unreasonable as to be perverse, and whether the Supreme Court of New South Wales was correct in finding that the jury could not reasonably conclude that the rubber rolling machine was not dangerous. Specifically, the court had to consider the meaning of "dangerous" and "securely fence" within the context of section 33 of the Act, and whether the provision of a stop cord constituted adequate protection or an admission of danger.

A majority of the High Court (Webb, Fullagar, and Kitto JJ.) held that the jury's verdict was not so unreasonable as to be "almost perverse" and that the jury had not failed in their duty. They reasoned that the question of whether a machine is dangerous is a question of fact and degree, and while the evidence of previous accidents and the nature of the machine suggested danger, it was open to the jury to consider these factors alongside the presence of the stop cord. The majority distinguished the present case from others where a finding of danger was considered inevitable, emphasizing that the jury was entitled to weigh all the evidence.

The appeal was allowed, and the order of the Supreme Court of New South Wales for a new trial was set aside. The defendant was therefore entitled to retain its verdict. Dixon C.J. and McTiernan J. dissented, finding that the verdict was indeed unreasonable given the evidence.

Orders