Forrest v John Mills Himself Pty Ltd

[1970] HCA 22

HIGH COURT OF AUSTRALIA

McTiernan, Menzies and Owen JJ.

FORREST v. JOHN MILLS HIMSELF PTY. LTD.

(1970) 121 CLR 149

30 July 1970

Negligence

Negligence—Master and servant—Fencing of dangerous machinery—Extent and scope of statutory obligations to be "securely fenced"—The Inspection of Machinery Acts, 1951 to 1966 (Q.), s. 21 (2) (a).*

Decision

July 30.
THE COURT delivered the following written judgment:-
The appellant was the unsuccessful plaintiff in an action in the Supreme Court of Queensland whereby he sought damages for common law negligence or, alternatively, for breach of statutory duty on the part of his employer, the respondent company. (at p151)

2. What happened was simple enough. The plaintiff, who was repairing a guillotine in a printing works, dropped a spanner through a hole in the flooring through which a belt passed, down to the floor below. He went to retrieve it. Not finding the spanner in the open space on the lower floor, he, without stopping the machinery - as he might have done - squeezed between a brick wall and a revolving wheel carrying a belt into a cramped, unlighted corner of the premises to look for a spanner. There he lit a match and bent over a revolving shaft in the area directly below the aperture through which the spanner had dropped. His clothing was caught by the revolving shaft and he suffered injury. The plaintiff knew the area in which he suffered injury; he knew that his spanner might be there; he knew that area was dark and he knew that he could make it quite safe by stopping the machinery. (at p151)

3. The learned trial judge found that the narrow space between the wall and the revolving wheel effectively sealed off the area in question. His Honour said:

"For all practical purposes contact with the moving drive shaft within the recessed area was prevented, and in my opinion only a most untoward and unusual manoeuvre, such as was executed by the plaintiff, could result in a person's coming close to it in the relevant area. It seems to me that in this context it does not matter that the plaintiff by his caution succeeded in passing through the gap, because I do not think his employer could reasonably be expected to foresee such a manoeuvre or guard against it. . . . . . . The plaintiff was experienced and armed with authority. After going to the basement and failing to find the tool in any accessible place there was in my view no good reason why, had he wished to continue on with his search, he should not have switched off the motor. True, he would have had to return to the upper floor and walk 200 feet approximately, but his failure in this regard cannot be described as mere inadvertence. To enter as he did the particular area without taking what seems to be an elementary precaution was, in my opinion, the negligence which caused his injuries, even if one disregards the fact that had he wished he could well have used a torch in the premises to look into the darkened area." (at p151)

4. We do not think that, unless there was some breach of statutory duty on the part of the defendant, there is any ground for an appellate court interfering with the finding of the learned trial judge that the defendant was not negligent. His Honour saw the premises and, with that advantage, he decided it was not unreasonable for any employer to rely upon the wall and the revolving wheel to keep employees out of the area in which the appellant came to harm and that, to have entered as he did without switching off the machinery, was untoward, unusual and careless. Accordingly, the appellant is not entitled to succeed unless there was a breach of statutory duty imposed for the protection of a class of persons to which he belonged. (at p152)

5. The finding that there was no breach of statutory duty presents a more difficult question. The Inspection of Machinery Acts, 1951 to 1966 (Q.), s. 21 (2) (a), requires that,

"Every part of any transmission machinery shall be securely fenced unless it is in such a position or of such construction as to be as safe to every person employed or working with respect thereto as it would be if securely fenced."

It is to be observed that the obligation to fence securely is absolute unless the machinery is as safe to a person working upon it as if it had been securely fenced. (at p152)

6. Upon full consideration of the matter we find ourselves unable to share his Honour's view, that, the close proximite of the wall and the wheel, made the revolving shaft in the space beyond the gap between the wall and the wheel, as safe as it would have been had it been securely fenced. A secure fence excludes persons other than those who are willing to defy its restricting presence and either surmount or penetrate it; the narrowness of the opening here under consideration could do no more than discourage a person employed or working with respect to the machinery from passing between the wall and the wheel. We do not think that obstructions past which a person may squeeze at some danger to himself is the equivalent of a secure fence. There was, therefore, with respect to the learned trial judge, what we regard as a breach of the defendant's statutory duty. (at p152)

7. At one stage of the hearing we were doubtful whether the statutory duty imposed by s. 21 (2) (a) was imposed for the benefit of employees other than a person "employed or working with respect" to the machinery required to be fenced. We have, however, satisfied ourselves that the narrowness of the exculpatory provision of the subsection should not be regarded as limiting the comprehensive character of the requirement that every part of any transmission machinery shall be securely fenced to the limited class of persons mentioned in the exculpatory provision. It would be an altogether too restrictive construction of s. 21 (2) (a) to regard it as affording protection to no one other than the person employed or working with respect to the machinery to be fenced. The class of persons to be protected is at least employees who may be injured by a disregard of the statutory requirements. (at p153)

8. Accordingly, we think that his Honour was wrong in finding that there had been no breach of statutory duty on the part of the respondent which, if it caused injury to the appellant, did entitle him to recover damages. (at p153)

9. Furthermore, despite his Honour's finding that it was the unusual and untoward character of what the appellant himself did in squeezing into the space where the shaft was revolving that caused his injury, we are unable to conclude that the breach of statutory duty, which we have found was committed, had no causal relation to the appellant's injury. It seems to us that the proper conclusion is that both the respondent's breach of statutory duty and the appellant's carelessness contributed to his suffering the injury which he did. (at p153)

10. It follows that, although we think that the respondent is liable in damages, we consider that the damages must be apportioned because of the contributory negligence of the appellant: The Law Reform (Tortfeasors Contribution, Contributory Negligence and Division of Chattels) Act of 1952 (Q.). The task of apportioning is always difficult, but, in this case, we think that a proper apportionment of responsibility would be 60% to the respondent and 40% to the appellant. (at p153)

11. The learned trial judge, notwithstanding his finding in favour of the defendant, did assess the plaintiff's damages at $5,275. Applying to that sum the apportionment that commends itself to us, we think that the appeal should be allowed and, in lieu of judgment for the defendant, there should be judgment for the plaintiff for $3,165. (at p153)

Orders

Appeal allowed with costs. Judgment of the Supreme Court of Queensland discharged and order that in lieu thereof there be judgment for the appellant for the sum of $3,165.00 with costs.