Medved v Dunlop Olympic Ltd

[1991] HCATrans 323

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S56 of 1991

B e t w e e n -

MILKA MEDVED

Appellant

and

DUNLOP OLYMPIC LTD T/AS

DUNLOP SLAZENGER

Respondent

BRENNAN J
DAWSON J
TOOHEY J
GAUDRON J

McHUGH J

Medved(2) 1 14/11/91

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 14 NOVEMBER 1991, AT 10.20 AM

Copyright in the High Court of Australia

MR B.J. GROSS, QC:  May it please the Court, I appear with

MSC.A. RIMMER, for the appellant. (instructed by

Geoffrey Edwards & Co.)

MR F.S. McALARY, QC:  I appear on behalf of the respondent,

Your Honour, with my learned junior,

MR S.J. DEANE-JOHNS. (instructed by Hunt and Hunt)

MASON CJ:	Mr Gross?
MR GROSS:	May it please Your Honours. Might I hand up the

seven copies of the outline, together with a survey

of the legislation on this particular industrial

topic from the various States, and copies of the

decision of this Court in Waugh v Kippen to which

we will be referring Your Honours.

Your Honours, section 36(1) of the New South

Wales Act has a number of particular features.

Your Honours, the first thing that ought to be said is that although section 36(2) speaks of the

capacity to prescribe regulations setting out

various:

masses which may be lifted, carried or moved

by persons employed in factories -

there have been no such regulations. The next

matter is that section 36 itself does not, where

there is a breach of that section, give rise to an

offence under the Factories, Shops and Industries

Act. Your Honours, the majority judgment does make

that assumption and perhaps to an extent that was

induced error in the court below but, Your Honours,

it is plain on looking at the Factories, Shops and

Industries Act that section 36 sets out, as it

were, a standard of behaviour but unlike other

sections in the Factories, Shops and Industries

Act, for example, section 27 and section 29, does

not prescribe a penalty and does not stipulate that
a breach gives rise to an offence.	So that

although in the Act itself, the latter portions,

there is provision for prosecution for offences,

Section 36 is one of those industrial provisions

and there are many others of this kind which do

not, themselves, give rise to an offence where a

breach occurs.

TOOHEY J:  Do you mean, Mr Gross, that an offence is only

committed under the Act where the particular

section identifies penalty for breach of that

section?

MR GROSS:	Yes, where it either speaks in terms of penalty or it speaks of an offence being committed where
there is a breach.  Your Honours, the best example

Medved(2) 2 14/11/91

of that type of analysis is in sections 27 and 29.
There are other provisions, for example, in
relation to safe means of access for factories,
section 40(1), that impose a standard, but there is
no further provision dealing with the consequences

of ..... implied.

Your Honours, whilst dealing with the form of

the legislation, can I take Your Honours to the

tabulation of legislation in the various States

that we have just handed up. Would Your Honours go

to page 5, which sets out the South Australian

position. We have in our submissions indicated

that there are two types of legislation, and for

that purpose compared the New South Wales provision

with the English provision. It is probably more

correct to say there are three classes of

provision, as the South Australian provision

illustrates, because it has all three types. If

Your Honours look at the South Australian provision

the first provision is really, for practical

purposes, a duplication of the English provision,

such as was considered in Brown. Subsection (2)

is of the same type as section 36 of the New South

Wales Act. The third alternative is as set out in

subsection (3), where there is a directive that a

particular safety code, which is very detailed and

contains quite a number of overlapping principles

and guides, shall be complied with.

Section 36, Your Honours, in our submission,

selects what is the most important feature of a

lifting or carrying operation as it bears upon risk

of injury, and that is, in our submission, the

dimensions or weight of the particular object that

is to be lifted or carried.

Your Honours, in our submission, that is a

feature of the industrial situation which is

readily identified and capable of being understood

at management and factory floor level.	By focusing
on, in our submission, the object itself as

distinct from the characteristics of the worker or
the surrounding industrial situation, including the
design of the workplace and the like, it is made
possible for those who conduct factories or occupy
factories to organize the performance of the work
which tends to be of a repetitive kind, or of a

process kind, so as to obey the simple statutory

command.

Your Honours, it is convenient, if I may, to

take Your Honours to the majority judgment where a

number of matters are relied upon by the majority

as favouring the approach taken by the trial judge.

If Your Honours would go to page 252 line 18 and

following, the majority judgment proceeds under the

Medved(2)	14/11/91 heading, "The Trial Judge was right", to list four
considerations which it has taken into account in reaching this conclusion. Could I pass over for the time being reason 1 which relates to the
purpose of the legislation and deal with reasons 2
and 3 which are on page 253. At 253 line 12:

2.      The construction urged by the appellant

leads to a most inconvenient result. It would

mean that although several workers were able,

together, to lift and carry an object with

perfect safety and without risk - the employer

would be guilty of a criminal offence. Civil

liability might also exist but this would

probably be theoretical only in view of the

need to prove causation.

3.      The section will apply to quite modest

establishments, including those which only

employ women. It may not be practicable or

financially reasonable to compel employers in

such factories to use mechanical devices to

move loads over 16 kilos when they can be

safely carried by two or more women working

together.

Your Honours, those two paragraphs form the basis

of paragraph 1 of our written submissions. The

first matter for note of course is that it is
wrong, as we have already put, to suggest that the

employer would be guilty of a criminal offence,

because section 36 in fact does not provide for the

commission of an offence.

McHUGH J: But is there a common law rule that if a statute

prohibits conduct, then an indictment lies for it,

even though the statute itself does not provide for

any penalty?

MR GROSS:  Your Honour, I must confess I had not considered

that particular aspect at common law. Whether it	is theoretically possible is one matter; whether
it is a real risk is another matter. I will put
inspectorate but, Your Honours, the structure of the Factories Shops & Industries Act appears to contemplate that the officials responsible for the administration of the Act will deal with the prosecution of offences as stipulated in the Act. aside the question of the degree of activity of the offence or to stipulate a penalty would render prosecution unlikely.

DAWSON J: What do you say the section does; imposes a

moral obligation or is intended to relate to civil

liability?

Medved(2) 4 14/11/91

MR GROSS:  Your Honours, it obviously performs an educated

function within industry. It also provides the
basis for what the legislature says shall be the
relevant content of the standard of care. It

obviously also, in our submission, gives rise to a

private cause of action by way of civil proceedings

in the event of breach.

BRENNAN J: What is the meaning of the word "mass"?

MR GROSS:  Your Honours, there would appear to be two

streams of relevant definition of the term. One is

to describe it as a coherent body of matter, which
plainly includes an accumulation of smaller
ingredients. Secondly, the usage of the term as
applied in the world of physics, namely the

quantity of matter in an object as measured

colloquially and non-technically by its weight.

Your Honours, mass in physical terms, as taught by

the school masters, involves the measurement of the

resistance of a particular body to inertia, and of

course that is the same regardless of the gravity

that exists. So the mass is the same on the moon

as on the earth. However, Your Honours, in

non-technical terms no relevant distinctions are

drawn as to the degree of gravity at any particular

point of the earth so that mass equates with weight

for that purpose.

However, Your Honour, in the context of this

particular Act, the section speaks of a greater

mass than a particular amount of kilograms and,

Your Honours, in the context of the section a

greater mass than, in this case 16 kilograms, means
an accumulation of matter or a coherent body of

matter having a weight greater than the relevant

amount. But regardless, Your Honour, of how one

approaches the definition, in all cases one is

talking about an invariable characteristic of an

object. The relevant concentration on the object

itself eliminates the personal equation in relation

to either the worker or the particular surrounding

features of the industrial situation and task.

TOOHEY J: Well you say that, Mr Gross, but is that not the

very problem that has to be answered in this case?

MR GROSS:  Your Honour, in our submission, the distinction

between the two situations was correctly described

by this Court in Waugh v Kippen, which I will take

Your Honours to now, if I may, in the context of

the Queensland provision. Your Honours will see from the schedule of the sections on page 3, the Queensland provision which is clause 25(1) of

certain rules under the Factories & Shops Act, and

Your Honours will see Queensland - - -

Medved(2) 14/11/91

BRENNAN J: Before you go to that though, if I could just

take you back to the meaning of the word "mass"

again. Is it right to say that if your first definition of "mass", that is, an object of a particular kind or description, is the correct

meaning, then you succeed. If, on the other hand, "mass" means the resistance to inertia, or however you described it, then you fail.

MR GROSS:  With respect, the second definition was the

quantity of matter in a body as measured by its

weight, that is, if you take that object and you

weigh it so that, in a sense, one does not require

manual handling to find out what it is. It does

not depend on an industrial situation or a worker

hanging on to it to make that assessment. It is

purely a matter of having the object with scales

under it. So that, Your Honours, on both

definitions one is dealing with a coherent quantity

or body of matter.

BRENNAN J:  Can you refer us to the sources of those

definitions?

MR GROSS:  Your Honours, the Oxford Dictionary which, I

think, my learned friend has brought multiple
copies of, and I have not, I am sorry, does set out

those alternative definitions. There are obviously

many other definitions which have no potential

application.

MR McALARY:  Your Honours, perhaps I can help my friend by

handing up my submissions which do attach the

relevant definition in the Shorter Oxford, and the

relevant definition in the Concise. That may

assist.

BRENNAN J:	You have no objection to that, Mr Gross?
MR GROSS:	No objection.

MR McALARY:  I hope, I trust, to assist my friend in Court.

MR GROSS:	I am obliged to my friend.
TOOHEY J:	Is the term quite unique to the New South Wales

legislation, Mr Gross, in your investigations?

MR GROSS:  Your Honour, I think that the expression "weight"

is used in the -

TOOHEY J:	No - "mass".
MR GROSS:	"Weight" is used in the others.  "Mass" is only

used, I think, in the New South Wales legislation.

Medved(2) 6 14/11/91

TOOHEY J:  And is it only used once in the New South Wales

statute?

MR GROSS:  It is not found in sections other than

section 36.

BRENNAN J: Are we going to be greatly assisted by reference

to other statutes?

MR GROSS:  As to what the rest of the statute says, no,

Your Honours. It is purely a matter of dealing

with the terms of this particular section.

BRENNAN J:  Do not let us cut off your argument, but at the

same time, we do not need to go into excursions

which have no particular relevance to the point in

hand.

MR GROSS:	Your Honours, just dealing with the dictionary definition, I just point out one or two matters if
I may.  I think in argument the expression has been
used, "the weight of the object".  Of course, in
our submission, one can have accumulations of
objects, for example, bags of potatoes or indeed,
as in the present case, a container of golf ball
centres, so that the use of the term "object" is perhaps inappropriate. But, Your Honours, The
Concise Oxford Dictionary would appear to have two
lines of definition. If Your Honours would turn to
that page that my friend has supplied:

1. A coherent body of matter of indefinite

shape.

2. A dense aggregation of objects.

Your Honours, obviously a container of golf balls

has a definite shape to a degree although, I

suppose, the golf balls can move. But,

Your Honours, the secondary part of that

definition, "A dense aggregation of objects", for

earlier part, the overall meaning of, as it were,	example a mass of fibres gives, together with the
an accumulation of matter which is identifiable
and, in effect, together as a unit. The other
definition which is taken from the field of physics:

The quantity of matter which a body contains.

DAWSON J:  In strict use distinguished from weight and you measure - how do you measure mass?

MR GROSS: Strictly speaking, it involves comparison with

the standard kilogram which is kept in Paris, which

I think is a platinum object. However, other

weighing devices have been standardized against

that particular object, so obviously one then

Medved(2) 7 14/11/91

weighs the object on those replacement machines, or

on those devices which are calibrated to accord

with the standard kilogram.

TOOHEY J: 

Mr Gross, since the term seems to be peculiar to

the New South Wales statute, can you tell us
whether it was found in any of the earlier

factories and shops legislation of New South Wales?

MR GROSS: 

Your Honours, the expression "mass", I think, was

not used in the earlier legislation. When the 1962

Act came into being and I think this is - - -

McHUGH J: It used the word "weight" originally.

MR GROSS:  It used the word "weight" and they were talkimg about pounds, 35 pounds. I think in 1975 or

thereabouts, when the metric measures were brought

in to legislation like this, weight became mass,

weights became masses and for relevant purposes, 35

pounds became 16 kilograms.

TOOHEY J: Are you saying that it was not part of the 1962

Act, or are you saying that it was not part of the

1962 when first enacted?

MR GROSS:  That is so. Mass was not in there, weight was,

and the move to kilograms was accompanied by a

change in the terminology from weight to mass.

TOOHEY J:	Was there any explanation in the parliamentary material as to why the term was used?
MR GROSS:	Your Honours, I have not looked, is the short

answer, but it was obviously part of a systematic

change in the use of figures in legislation and I

am not aware of any other - - -

TOOHEY J:  I am sorry, I do not understand that. Why should

the change to metric measure dictate or necessitate

the change from the word "weight" to the word

"mass"?

MR GROSS:  Your Honours, in our submission, it is not

critical to our argument that mass be the

criterion, as distinct from weight, if a

distinction is to be drawn.

TOOHEY J: That may well be but I am just wondering where the

expression came from in legislative terms.

MR GROSS:  Yes. Your Honours, it was perhaps thought,

because they had resort to scientists, no doubt

from the translation, that mass is a better term to

use than weight since weight can technically vary

from, depending on your distance from the centre of

the earth and, presumably, with modern instruments

Medved(2) 8 14/11/91

being capable of very fine calibrations, it was

felt that some adjustment ought, at least to

satisfy the scientists, to be made.

TOOHEY J: It is a pretty bizarre explanation for factories

and shops legislation, is it not?

MR GROSS:  Yes, one cannot imagine minute calibrations

taking place on factories floors. But,

Your Honours, if one makes the assumption that one

is talking about weight when the expression mass is

used, weight still remains a characteristic of the

object and weight is not a way of measuring the

effort of a worker or the forces being applied to

him to the particular object. It may be convenient

to take Your Honours to this Court's decision in

Waugh v Kippen, (1986) 160 CLR 156, so as to better

explain that submission.	I will not trouble
Your Honours with the facts.	Can I take

Your Honours to page 162 point 7 in the joint

judgment. Your Honours, the text of clause 25(1)

is there set out, and then if I take Your Honours

to 163 point 3:

The construction of the rule prescribed

by cl. 25(1) is not without difficulty.

McPherson J., with those judgment

Andrews A.C.J. agreed, was influenced by two

considerations in concluding that the rule

imposed an objective test in the sense that an

employer, whatever his common law duties may

be, is required by the rule merely to have

regard to the likelihood of risk of injury to the average male employee over eighteen years of age.

And, Your Honours, of course 25(1) is the provision

concerned with an object so heavy as to be likely

to cause risk of injury -

The first was that a breach of the rule

entails liability to conviction of an offence
under s. 93 of the Act.	We shall return to

this question later in these reasons. The

second was the fact that cl. 25(2) plainly

does not look to the physical condition of any

particular employee. It simply prescribes the

maximum weights that males up to eighteen

years of age and all females may be permitted

to "lift carry or move by hand". The risk of

injury to a particular employee is immaterial,

with the result that if a woman, who by reason

of physical disability is susceptible to

injury, is permitted to carry weights within

the permitted maxima the employer does not
offend against the provision notwithstanding

the likelihood of injury.

Medved(2) 14/11/91

With all respect we do not think that it

is correct to allow cl. 25(2) to influence the

construction of cl. 25(1). Sub-clause (2) is of a subsidiary nature and proceeds by way of

setting arbitrary limits to protect the
specified classes of employees. Those limits

exhibit a modesty which appears to take

account of the widely differing physical

capacities of adolescents and females over

eighteen years of age. The arbitrary

character of the rule is no doubt intended to

facilitate enforcement. On the other hand,

sub-cl. (1) is the primary provision and must

be construed in accordance with its plain

terms.	It covers the vast majority of tasks
carried out by employees.	The range of

circumstances in which those tasks are carried

out makes it inappropriate to prescribe an

arbitrary limit. An entirely different

criterion of industrial safety is postulated,

namely, whether the object is so heavy as to

be likely to cause risk of injury. This is a

criterion the application of which will vary

with the circumstances and there is no reason

why one of those circumstances should not be

the physical capacity or condition of the

worker in question.

I do not need to read on, Your Honours, I think.

BRENNAN J: What do you derive from that?

MR GROSS:  Your Honours, the distinction is identified

between, as it were, an arbitrary, and indeed

simple, test of an industrial situation to be

avoided where the relevant criterion is the weight

of the object, and the - - -

BRENNAN J: But that is the very point, is it not? Here the

criterion was the weight of the object. In your

case the question is whether it is the object's

weight which is the criterion of liability.

MR GROSS:  Yes, Your Honours, that is so. It is only the

object which can have weight. Your Honours, the

error which we submit that the court fell into in

its majority judgment was to endeavour to assess

what would be the relevant degree of force which

would be required to be applied by one employee

when in fact a shared lifting situation existed.

So that, Your Honours, an object is not lifted

merely because the worker in a sense is equal to

the weight of the object. The movement of the

object depends upon the application of force to the

object with the particular effort required

depending on a large number of variables.

Medved(2) 10 14/11/91

Your Honours, the first factor is its weight.

The size, shape and flexibility of the object are

relevant to how much force must be applied; whether

it contains liquid or moving parts or the

distribution of the densities within that

particular overall object; the grip it provides and the point at the perimeters of the object where the worker obtains his grip. The centre of gravity in

the case of a shared lifting or carrying situation

will be constantly varying.

Your Honours, that does not depend merely upon

whether the object is even in shape and, as it

were, lifted in a symmetrical vertical manner or

carried in a perfectly horizontal fashion because,

Your Honours, there are - putting aside matters in

the working environment, including whether you are

on uneven surfaces, whether the work is to be done

above or below waist level, what also determines

the degree of force applied is the point of

attachment of each worker, the direction - - -

BRENNAN J: Yes, well these are manifest physical phenomena

which are outlined in the majority judgments in any

event.

MR GROSS:  Yes but, Your Honours, may I add to this there

are also factors such as the speed of movement so

that the effort is, in effect, in an individual

situation a product of mass times acceleration.	So
that it is easy to see why the New South Wales

provision renders this sort of inquiry irrelevant. Your Honours, the error, in our submission, is the simplistic translation of a proportion of the

overall weight of the object to the assumed effort

or burden of the individual worker.

TOOHEY J: Are you saying any more, Mr Gross, than that if

the majority are right the section is simply

unworkable?

MR GROSS:  Yes, Your Honours, that is so. The error is to

take the weight and divide it by the number of

workers. Now, they may be workers of different

heights and weights and speed of movement, lifting

an object - and I do not wish to labour the

physical points - merely involves the person

applying a set of levers represented by the various

parts of the body in order to cope with, as part of

the overall task, the particular weight of the

object. That effort can be efficiently or

inefficiently applied. But, Your Honours, to add

to the chain of complications, where two workers

are lifting together, they are not necessarily

lifting in such a fashion as to be not, as it were,

getting in each other's way, because the forces

applied include not only the forces of moving the

Medved(2) 11 14/11/91

object, but also the forces against the resistance
created by the other worker.

The movement of any industrial load involves

acceleration, which one can measure in a laboratory

situation, but also deceleration as the speed of

movement or carrying alters. So that,

Your Honours, it is not appropriate in scientific

or industrial terms to treat section 36 as a way of

describing the proportionate burden of a particular

worker. Assuming that the inspectorate, despite

there being no offence for breaching the provisions

and no penalty, was to arrive at the factory during

the course of a shared lift, it is impossible to,

as it were, intercept a lifting operation, which is

a dynamic activity, half-way through, or at a

particular point, in order to measure what share of

the weight, if I can use that expression, is being

undertaken in percentage terms, by an individual

worker, or what forces he is applying.

TOOHEY J: Is it your argument that a shared load, assuming it to be in excess of the prescribed amounts, must

always be contrary to section 36?

MR GROSS:  Yes, Your Honour. And if an individual lifting

activity is analysed, ultimately if you have a

worker at each end of an object, each worker

represents progressively a lever through which the

other worker is moving his end. Now, of course, in

a sense, the fulcrums are constantly moving, but

you can have situations throughout the course of a

lift where one of the workers can be bearing up to

all of the weight and the other is not.	It depends
really on, as it were, how fast the prior

acceleration has been and whether, in effect, that

either leaves the object, as it were, moving under

the force of the original effort, but with the

worker then not taking any weight - - -

TOOHEY J: Could I ask you this, Mr Gross: in the current

New South Wales legislation, in the case of a male

over 18, is there any specific provision relating

to the weight or mass that can be lifted? There

does not appear to be anything comparable to the

section 25(1) discussed in Waugh v Kippen, or is

there?

MR GROSS:  No, there is nothing equivalent to section 25(1),

that is so, so in New South Wales we are dealing

with a special and privileged group. One may even

argue, back at the time when the legislation first

came into being, that there perhaps were not as

many females working in, as it were, manual work in

factories as there are now. But, in effect, the

legislation - - -

Medved(2)	12	14/11/91
TOOHEY J: What, in 1962?

MR GROSS:  But, Your Honours, this is a legislation of the

type which has earlier antecedents and historically

infants and females have been accorded a privileged position in terms of protection against injury from

manual tasks and, Your Honours, it is anomalous,

and, indeed, I think, that the Court in Waugh v

Kippen seems to acknowledge that the figures may be

over-generous and going, in a sense, well beyond

what is required to create a safe environment for a

lifting operation.

BRENNAN J:  Mr Gross, does your argument come to any more

than this: that where an object is being lifted or

carried by two or more people, and the object

itself exceeds in weight the stated weights

in 36(1), that it is impossible, having regard to

the dynamics of the movement, to determine what any
individual at any time is carrying in terms of the
pressure which that individual must bring to bear

in order to participate in the lifting or carrying?

MR GROSS: That summarizes my submission, Your Honour.

Your Honours, in the written submissions I have

indicated what, we say, is the error by the

majority in taking excessive notice of Brown's case

and of the English legislation which is plainly

concerned with a different criterion.

Your Honours, the essence of that submission

is that the English legislation focuses upon what

the worker was employed to do, which involves a
threshold question of what task he was allocated,

or what his normal job duties entail.

Your Honours, Brown's case ultimately turned on the

question of what was the precise terms of the

direction given to the individual employee and,

Your Honours, the emphasis which was placed by the majority judgment on what Lord Kilbrandon had to

say indicates, in our submission, that the majority

dealt with section 36 as though it was identical	for all relevant purposes to the New South Wales
provision. Your Honours, we have endeavoured to
set out these propositions in some detail in the
written submissions and I do not wish to take
Your Honours to them unless Your Honours feel it
will be more helpful than in the written form.

BRENNAN J: What order are you seeking if you should

succeed?

MR GROSS:  Your Honours, we would be seeking a new trial.

There are passages in the judgment of the Court of

Appeal which tend to imply that on any analysis the

case as went to the jury was that the container

with the golf balls was over 16 kilograms.

Medved(2) 13 14/11/91

However, we conceded in the Court of Appeal, and we

concede now, there is a small passage of fairly
confused evidence from one of the defendant's

witnesses which gives an estimate of the container

being a quarter full which, if true, would bring

the overall weight below the 16 kilograms.

BRENNAN J: Is that witness still alive?

MR GROSS:  I do not wish to put a hex on her by expressing

any comments.

BRENNAN J: It is such a long time since this trial.

MR GROSS:  It is a long time. The issue put to the jury was

that there was no question in a sense that the

we~ght was C'rer the statutory limit. There was no

dispute before the court at first instance that the

plaintiff had been injured because there had been a

binding determination of the Workers' Compensation

Commission on that point.

Our reservations on the question of a new

trial merely go to the need to concede there is a

passage of confused evidence where she suggests

that it was a quarter full, although in other

passages on the same page she indicates it was half

full.

Your Honours, the judgment also deals in some

detail with the question of whether or not the

appellant obtained some benefit from the canon of

statutory interpretation that the singular can

include the plural. Your Honours, at pages 254 to

255 the judgment deals with that.

Your Honours, we would accept that the court only deals with that in a sense in response to the

appellant's submission as indicated at page 252,

that the section applied to a situation where more

than one worker was doing the lifting. However, we

would submit this, that there is no need to resort	to the canon anyway, because the present situation
involves the singular situation of a female worker carrying out the lift, and the addition of an extra
worker in the task does not create relevant
plurality which confuses the situation. But in any
event, the section is expressed in the form of a
negative prohibition, that is, no worker, so that
one does not have to start looking for the
consequences of plurality; and thirdly, we would
put that in any event, the section on its face
seems to be talking, at least as the prohibition is
phrased, in terms of females, plural. But,
Your Honours, we would submit ourselves that resort
to the canon neither advances our case, nor tends against it.

Medved(2) 14 14/11/91

TOOHEY J:	Mr Gross, could I ask you this in relation to the questions you were asked about a new trial if the
appeal should succeed.  I gather from what is
before us that the appellant's claim was in
negligence at common law in breach of statutory
duty.
MR GROSS:	Yes.

TOOHEY J: What happened to the common law act?

MR GROSS:	The jury found against us on the negligence count. Breach of the statute was relied upon as
evidence of negligence.  So that the misdirection
on the statutory count - what we contend was a
misdirection - must have affected our chances on the negligence count.

Your Honours, may I say this: we would

anticipate, if a new trial were to take place, first that we would only rely on the statutory

count and we would not rely on the negligence

count, and second, that we would ask the supreme

court to grant a trial without a jury so as to

avoid the necessity of, as it were, going through

the same evidence in front of a jury with the

necessary extra days that are used up in referring

back to prior evidence.

BRENNAN J:  So that would be an order made by the judge

before whom the matter came, pursuant to an order

of remittal by this Court?

MR GROSS:  Your Honours, it would depend on an order under

the particular provision of the Supreme Court Act

by a judge of the supreme court, or master.

BRENNAN J:  So far as your application to this Court is

concerned, you ask for no more than an order

remitting the matter?

MR GROSS:  That is so, but we are happy to have the Court

note what we would be intending to do and we would

abide by that position. I think that completes my

submissions, Your Honours.

BRENNAN J:	Mr McAlary?
MR McALARY:	Your Honours, I am not able to assist the Court

in connection with the first matter that my friend

raised, that is the assertion that the breach of

section 36 does not give rise to a criminal

offence.

McHUGH J:  I may have been wrong about that. I had in mind

a passage in a judgment of Lord Simonds in Cutler v Wandsworth Stadium, (1949) AC, but what he said was

Medved(2) 15 14/11/91

that an action for damages will lie at the suit of

a person indemnified if there is no - - -

Mr McALARY:  Your Honour, it appeared to have been conceded

in the court below and, since I was in that and

came into this but recently, I did not look into

every possible area which might arise in the

argument. It seems though, with respect, that the

most significant matter in the construction of

section 36, namely introduction of the word "mass"

in lieu of the word "weight" in 1975, was not

adverted to in the Full Court.

I would like to take Your Honours to that

because we submit, with respect, that in some

senses that is the key to the question of

construction. I may start off by saying that my

learned junior last night looked up the

parliamentary debate in connection with this Act

and failed to find anything that he thought of

significance.

The Act, Your Honours, is No 72 of 1975. It

is the Metric Conversion Act. The preamble

provides that it is:

An Act to further facilitate the adoption of

the metric system of measurement; to amend the Metric Conversion Act, 1974, in certain respects and to amend references to physical

quantities in certain other Acts; to validate

certain matter -

If one turns to section 2, the provisions of this

Act are for the purpose of metric conversion.

Section 2(1) - - -

BRENNAN J: Section 2(1) of what Act?

MR McALARY:	Of the Metric Conversion Act, Your Honour.
TOOHEY J: There was an earlier - a Savings Act in 1974,

that we seem to have in front of us, but that is

not the one you are speaking of.

MR McALARY:  No, that is not the one I am speaking of. The

one I am now looking at, Your Honour -

BRENNAN J:  You have provided us with a copy of some parts

of the Metric Conversion Act, but not, it seems,

subsection - - -

MR McALARY:  I am sorry, Your Honours. I started off on the

assumption that the word "mass" went back to 1962.

When I found it did not, I then set out to try and

find out why and where it came in. I got on to

this point quite late in the area. But can I just

Medved(2) 16 14/11/91

read it to you, because I think it is clear enough.

Section 2 of the Metric Conversion Act 1975

provides - the side note is Application of Act:

(1) The provisions of this Act, section 5

excepted, are for the purpose of metric

conversion.

So if you are looking for a statement of the

purpose of this legislation, it is given in section

2 as being for the purpose of metric conversion.

If you then proceed to section 7 of the Act:

Each Act specified in Column 1 of the Schedule

is amended in the provision of that Act

specified opposite thereto in the column

headed "Provision of Act" in column 2 of the

Schedule.

So what you do, Your Honour, is go to the schedule,

and when you go to the schedule you will find the

existing legislation, and then you will find the

short title to the Act, the provision of the Act,

the matter to be omitted and the matter to be

inserted.

Your Honour, in the schedule, which is

incorporated by section 7, the Factories, Shops and

Industries Act, 1962, is dealt with about a third

of the way down the schedule. It is at page 961 of

the original Act, and what it provides is: "Year

and number of Act", "1962, No. 43"; "Short title

of Act", "Factories, Shops and Industries Act,

1962"; "Provision of Act" - then you get "36(2)";

"Matter omitted", and then you have the word

"weights (wherever occurring)"; "Matter to be

inserted", "masses." Now that is where the word

"masses" comes from, in section 36 as it currently

stands.

TOOHEY J: But does that not all tell against you? It would

effect a conversion from imperial measure to metric	suggest that the Act sought to do nothing more than
measure, so that if the word "weight" for instance
had a well understood meaning before this Act was
enacted, it might be a fairly long step to suggest that there was anything more than a conversion into metric terms.

MR McALARY:  Your Honour, that is exactly what we submit,

with respect, did occur. It was a conversion to

metric terms, and the word "masses" is technically

correct for the word "weight" if you go to a
terrestrial situation. If you go to a

non-terrestrial situation, then the word "mass" is

always used as, for example, in the discussion of

the mass of a star or the mass of a neutron star.

Medved(2) 17 14/11/91

But what I was seeking to say, Your Honour,

was

DAWSON J:  I have asked this question before, but I ask you

too, how do you determine mass as opposed to

weight. I am no physicist?

MR McALARY:  Your Honour, I think I know a little about it

but I am not sure that I can - can I put it this

way: if you talk about it in extraterrestrial

terms, Your Honour, then you are talking about a

space occupied by a substance, and the mass of the

space which is occupied by the substance is the

mass of the space by the relevant density of the

substance.

DAWSON J:	You can test it by water - your displacement of water, is it not?
MR McALARY:	I think, Your Honour, the difficulty we run

into is we tend to see things in terms of Euclidean

space, which is referable to the hear and now of

this planet, and what we are tending to talk about,

particularly in the metric situation, is the

physical concept of mass.

DAWSON J: But once you start to talk about mass in terms of

weight in terms of kilograms, it is no different to weight except perhaps you may have to measure it by

standard weight somewhere.

MR McALARY:  No, that is right. Your Honour, if I can just

follow that up, if I might, and I will come back to

Your Honour Mr Justice Toohey in a moment, if I

could to the question that you put to me.

DAWSON J: But can you talk in terms of mass other than in

terms of weight?

MR McALARY:  Your Honour, I do not think you can, with

respect, though there is a very technical

difference drawn between the two. But for

practical purposes, I mean for the purposes of

legislation and discussion, weight and mass are

regarded as equivalents and, indeed, if you look at

the Shorter Oxford Dictionary under the definition of "mass", the last meaning given, that is 6.b, is

in:

Physics.	The quantity of matter which a body
contains;	in strict use dist. from weight.

DAWSON J:  I know that, but it does not tell me how it is.

It does not matter, I can look it up.

MR McALARY:  Your Honour, I am sorry, I would not wish to

make assertions about areas of science which I do

Medved(2) 18 14/11/91

not believe I am competent to properly discuss.	I
have some views about how you calculate it and
matters of that character from my general reading
in astronomy and physics, but I do not know that I
can do it for this purpose. But reverting to what
Your Honour said, what I was seeking to say, in my submission, was that of the two alternative
constructions which are being asserted by my learned friend, one is, put in blunt terms, that
the prohibition in the section is against lifting or carrying an object; the other is against a
person exerting themselves by lifting or carrying
to an extent greater than would be involved in
moving a mass of 16 kilograms. But the second

alternative construction is in no way prefaced upon

the existence of an object, the first is prefaced

on the existence of an object.

What is asserted in the first construction,

and that is the one which Mr Justice Mahoney

accepted, is that the section is to be read as if

it said "No person shall lift or carry an object of

greater weight than 16 kilograms." and indeed, if

Your Honours look at His Honour's judgment you will

see that he claims that there is a misconception in

that the qualifying adverb "greater" is not related

to mass, but it is related to the weight.

Your Honour, the way we seek to put the matter is

to say that the section is not directed - none of

these sections are directed to the movement of an

object. You find that type of distinction clearly

made in the Queensland legislation - I refer

Your Honour back to Kippen's case - where you find

in section 25(1) of the Queensland Act a

prohibition against moving object objects which are

likely to cause injury. But the second part,

section 25(2), my friend has already read the

material, is not directed to that. It imposes, as

my friend read, an arbitrary limit, not on objects,

but upon the exertion, or the effort, which the

employee shall be not called upon to exceed.

So you find a provision which says - and this

provision is common - that type of provision is

common throughout the legislation. Generally the

legislation takes the form of providing that in

relation to objects you shall not be employed or

required to move or lift objects which are likely

to cause injury. Now, in that setting the

prohibition is against the object; you look at the

object, you see what its effect is likely to have

upon the worker who is engaged to move it or carry

it.

But the alternative approach is to simply

impose an arbitrary limit upon the exertion or

effort that the worker may be called upon to put

Medved(2) 19 14/11/91

out in the course of his employment. That has

nothing, in our submission, to do with the object,

and it is that distinction which I suggest, with

respect, one can find in the comparable legislation

elsewhere in Australia and, indeed, I think it is

that distinction which one finds in the

United Kingdom legislation which was discussed in

Brown & Allied Ironfounders case, referred to in

1974.

I do not know that one gets any assistance by

just reading these cases at Your Honours. In the

end the point, as we see it, is a very short one.

BRENNAN J:  How does the section operate if you have an

object which is greater in weight than that which

is specified in the subsection, and it is being

lifted - and I am assuming for this purpose there

is no lateral movement of it; it is just being

lifted up - by more than one person, and that if

one attributed the weight rateably to each of them

the effort would be less than the prescribed

maximum?

MR McALARY: Well, Your Honour, with all respect to my

learned friend, I fail to see there is any

difficulty about this, because this is just a

simple question of fact for the jury to decide. It

is an issue of fact which goes to them like every

other issue of fact. The statutory prohibition

says no person shall lift more than 16 kilograms.

If the weight being lifted is 50 kilograms and it

is being lifted by five persons, it must be a
question surely for the jury to decide whether or

not the particular person who complained was, in

fact, lifting more than 16. If that person was

lifting more than 16, then the fact that five, six
or ten others were involved in the lift, does not

prevent - - -

DAWSON J: It is more complicated than that though, is it

not, Mr McAlary, because it talks of "allowed" or
"required".	Now, is the employer allowing a person

to lift more than a certain - - -

MR McALARY: Well, Your Honour, I am happy to accept that.

If the employer is allowing a situation to develop

where one person is lifting more than the

16 kilograms, then a breach of the statute is

established. But it must ultimately be,

Your Honour, a question of fact like - - -

DAWSON J:  If he gets three people to lift it, upon the

assumption that they would each bear a third of the

weight - - -

Medved(2) 20 14/11/91

MR McALARY: Well, I do not know about that, Your Honour.

Let me -

DAWSON J:  - - - if in fact ..... is he allowing the one who

bears the brunt - - -

MR McALARY: Well, let me put this to Your Honour, for

example.	The other day we were putting a 44 gallon
drum of petrol on the back of a truck.	Now, at

some stages in that lift, some of my friends had a

lot of the weight. But in the end, when you get

down and you uplift the bottom end of it, most of

the weight would certainly go on the person who was

uplifting the end of the drum. If, during that

lift, I had done more damage to my back than I

appear to have done, then doubtlessly if I had been

an employee I would have been able to say, "Well, I

lifted this part of the lift and this must have

been more than 16 kilograms", assuming I was not of

my current sex.

So what I am saying, Your Honour, is that it

just must be a question of fact for the jury like

every other question of fact. I do not see why the

issue of the proof of the breach, if there be a

breach, should dictate or, indeed, reflect upon the

meaning which would otherwise be clearly ascribed

to the section.

TOOHEY J: There seem to me two difficulties in the way of

this. One is that the section is clearly designed

to cater for young persons and females, and that of

itself is a pointer perhaps to the proper

construction of the section if there is an

ambiguity. But the second aspect of it is this:

you referred to the Queensland legislation,

Mr McAlary, and spoke of the alternative

provisions, but in truth they are not alternative

provisions. They are different provisions, and it

is easy to understand why in one case, which is

aimed generally at weights that are likely to cause

injury, not by reference to any specific quantity

of kilograms or otherwise, that the legislation

speaks in terms of an "object", which is probably

the only way you can do it.

But when you get down to specific weights as

is the case of section 25(2) in the Queensland

legislation, then it is a different test that is

being postulated. But it does not necessarily mean

that "weight" is not to be equated with the weight

of a load.

MR McALARY:  Your Honour, with respect, I suggest that it

does mean - may I take issue with Your Honour on

the last proposition. I believe the concept of

"load" finds its source in the English legislation

Medved(2) 21 14/11/91

where they talk about moving any load, and you find

the word "load" used in several of the Australian

statutes in other States, but is it not correct,

with respect, Your Honour, to say that if you look

at the Queensland Act, and some of the other Acts

reflect the same position, that what you find there

is two quite different tests.

The first test is whether the moving of an

object is likely to cause injury. Now, in that

case what one focuses upon is the object, the
circumstances in which it is moved, and the

likelihood of injury flowing from it. That is a

wide universal test which would cover all weights
no matter what size they are, even very small
weights, depending upon the condition of the person
and the circumstances in which the movement is to

take place.

May I just add that the issue which would go

to the jury on that matter is equally complex with

the issue which would go to the jury on my friend's

postulation about this test. It is the same sort

of issue: is injury likely to result from the

movement of a load of this size in these

circumstances with this person with the employer

knowing this and that about him? So that is the

first limb.

The second limb, Your Honour, is arbitrary.

It does not look at any object. It does not look

at the particular conditions of the person in

question. It adopts only two criteria: age, and

sex. If those criteria are fulfilled, then the

limit is fixed and absolutely fixed. The employee

shall not be called upon, allowed or permitted or

required to exert himself more than would be

involved in the lifting of such a mass.

TOOHEY J:	It is easy to get involved in circularity here, but it may well be that the very arbitrary nature
of the provision tells against an inquiry into
shared loads, as it were, or shared weights.
MR McALARY:	I do not think, with respect, Your Honour, it

would be an inquiry into it. It would be a

question of an assertion that the plaintiff lifted

or moved more than the relevant weight and you

would then look at the circumstances to see if the

claim was made out. Now, if there are a large

number of people doing it and if the plaintiff took

a particularly heavy section of it, then the case

may well be made as a matter of fact. If there are

a large number doing it and the plaintiff just had

their hand upon it, then the case would not be

made. It must be in the end, in our respectful

submission, an issue of fact.

Medved(2) 22 14/11/91

GAUDRON J: But is that the basis on which it went to the

jury, Mr McAlary?

MR McALARY:  Yes, it is, I think, with respect, Your Honour.

GAUDRON J:  I did not get that impression. I got the

impression that there was no breach of duty, not

because of what may or may not have occurred in the

lifting process but because, divided by two, the

weight was less than the prescribed weight.

MR McALARY: Well, Your Honour, the construction that I have

been contending for - I will just see if I can find
the passage that went to the jury, Your Honour - I

think it is at 211:

The particular section and the particular Act

of Parliament of which I made mention prior to the adjournment is s 36 of Factories Shops and Industries Act and the relevant part of that

section for the purpose of these proceedings

reads as follows -

and it is set out -

which is I am told approximately a little over

thirty-five pounds. You have to be satisfied

that the plaintiff falls within the category

of persons entitled to the benefit of the

protection of such a section. Clearly she

does. If you decide that she was allowed or required to lift or carry by hand a greater

mass than sixteen kilograms thereby causing

her injury, she would be entitled to succeed,

quite apart from her claim under the common

law count.

Now, with respect, Your Honour, I think that

does - - -

GAUDRON J: That begs the question. It leaves it in

precisely the words of the statute, and the

question is, how do you - - -

MR McALARY: Well, I would have submitted, with respect,

that a direction in terms of the statute would have

been a correct direction because all that the

statute requires, in our submission, Your Honour,

is that the plaintiff be allowed or required to

lift or carry by hand a mass greater than

16 kilograms. That is the - - -

BRENNAN J: Mr McAlary, to give the section the construction

you are contending for seems to me to require the

introduction of a concept different from weight,

namely force, and if you take the example that you

gave of lifting the 44 gallon drum, and if you are

Medved(2) 23 14/11/91

unfortunate enough to be on the bottom end of that

as you lifted it over the tailgate of your utility,

no doubt you would have had to impart some

acceleration or movement to the mass in order to

get it over the tailgate.

MR McALARY:	Yes, Your Honour.
BRENNAN J:	And indeed it is the mass by the velocity which

produces the force which must be brought to bear on

an object by anybody who is moving it in any

direction.

MR McALARY: Well, Your Honour, I do not think that is

right. I think that the relevant equation is

V squared= U squared+ 2AS. That is the velocity

squared equals the initial velocity plus twice the

acceleration by the distance.

BRENNAN J: Are you not thinking in terms of acceleration

there?

MR McALARY:  No. I am talking about the terms of the

BRENNAN J:	No doubt you are right, Mr McAlary
MR McALARY:	I am talking about something I learned 50 years

ago -

BRENNAN J: Whatever it might be, there is a factor

different from the weight which affects the

pressure, if you like to use what is a

non-scientific term, I hope, for this purpose - a

pressure which must be brought to bear on the

object as it is being moved, lifted or carried, and

in the case of the 44 gallon drum, it is not the mere weight of the 44 gallon drum as on a set of

scales which is material, but the fact that it has to be uplifted and pushed into the tailgate. Now,

is that not indicative of the fact that if one is

speaking of weight, and that alone as a criterion

of liability or breach, one must be speaking of an

object and not of the force that is being brought

to bear to lift or carry the object?

MR McALARY:  No, Your Honour, with respect. You measure

your force by reference to the mass of the object.

BRENNAN J: Not to the mass - - -

MR MCALARY:	No.
BRENNAN J:	Not to the mass alone rate?

MR MCALARY: It is a component. What the legislature has

done is to take a particular component which would

be involved and they have focused the prohibition

Medved(2) 24 14/11/91

on that component. Now, Your Honour, if one was

engaged in weight lifting as a sport and one has

the dumbbells, then you have a. particular weight on

the bar standing at rest, but to raise that to your

chest level and then to push it above your head

involves exertional efforts of quite a different

kind than simply raising it an inch.

The two components of the initial weight and

the upward force against gravity which is required
to get it to a position up there may ultimately

produce a particular exertional factor, but in

fixing their prohibition in this case, what the

legislature has done is to take one component only

and that is the component measured by reference to

the mass of the object.at rest. That is probably,

Your Honour

BRENNAN J: It is an interesting discussion, Mr McAlary.

MR McALARY:  Your Honours, it is, as a matter of fact. The

physical sciences are extremely interesting because

they have got this - you have a real criterion of

truth or falsity in the physical sciences.

BRENNAN J: If only one could understand it.

MR McALARY:  Your Honour, may I just say, we submit that - I

have set it out shortly in my submissions and it is

pretty straightforward, what I have been seeking to

say. I accept largely what Your Honour the Presiding Judge said, two alternative

constructions, and I would have submitted,

Justice Gaudron, that the summing up was phased in

terms of the first construction that we have been

contending for, and the result was that there was a
breach - if that is not the true construction of

the Act, then the consequence was there was a misdirection. I accept that. I submit, with

respect, though, that there are - well, I would

say, with respect, there is only really one

construction; that the words of the section are

satisfactorily clear; that you, therefore, obtain a

grammatical construction and the purpose of

construction really coalesce to give the answer

that we seek.

I do not think that I can assist Your Honours.

There is a great number of cases in recent years

dealing with statutory interpretation, that are

doubtlessly very familiar to Your Honours and I am

not going to assist you by reading them to you.

Those are my submissions.

BRENNAN J: Thank you, Mr McAlary. Mr Gross, is there

anything in reply?

Medved(2)	25	14/11/91
MR GROSS:	A few matters, Your Honours.	Justice Gaudron

asked about the summing up, I think the relevant

passage is at 206 and 207, where the various

contentions concerning how you deal with the weight

or the share borne by the worker.

The next matter is that my friend in putting

submissions concerning how a provision like this

can, as it were, be applied retrospectively to an

industrial situation so as to yield an answer just

the same as the other types of provisions yield

answers, in our submission, cannot stand up to the

reality of industrial life where it is impossible

to retrospectively grade the percentage of an
overall burden being undertaken by an individual

worker in a shared situation and then to correlate

it with the occurrence of injury. So that, in our

submission, the construction suggested does in fact

reduce the protection of a worker in a shared

situation markedly.

Your Honours, it also of course provides scope

for evasion because if you have a female or infant

and a male in a shared situation, it can always be

asserted later that, at the time of injury, the

male adult person was putting in a greater amount

of effort.

Your Honours, the submission by my learned

friend that, in effect, the Act, in a sense, uses
the weight of the object as a means of determining,

as it were, the level of exertion being engaged in

by the worker, raises the question as to why the

legislature would, as it were, seek to examine a

particular characteristic of a manual handling

task, namely, its heaviness, purely as a means of

measuring or guessing something else, that is the

effort of the worker. And, Your Honours, the

measurement of any manual handling task must

involve a combination of two matters, mass as

measured by the gravitational load and, secondly,

the other personal and environmental factors other

than gravity that affect the effort. The

legislature fastens only upon the first section of

that particular equation.

Your Honours, my friend raised one matter

that, in a sense, our submission is, "Well, you can

have breach of the section, in effect, no matter

how many other persons are hanging on to the end".

Your Honours, it may well be in the building

industry, where construction work is done which is

covered by the Construction Safety Act, that you can have quite a number of persons engaging in a shared lift. But, of course, there are no

prohibitions measured by weight on heavy lifting in

construction work. This provision is one only

Medved(2) 26 14/11/91

under the Factories, Shops and Industries Act, it

does not affect agricultural situations, for

example, and of course the feature of a factory is
the likelihood, given the manufacturing processes
there being carried out, that tasks will be

repeated on a regular basis.

Also we would take up another matter which I

think was raised by Justice Gaudron. The focus of

the section is on the words - I think it is
"allowed or required" or "required or permitted",

but in any event the expression focuses upon the

act of the employer which occurs in advance of the

lift taking place.

In our submission, where that is the focus of the section, putting aside the other physical and

personal facts that are referred to elsewhere in

the section, what must be taken into account is the

range of possibilities which, in the industrial

setting, are likely to become a fact. The Act, in

our submission, deals with that problem by focusing

upon a constant feature of the lifting task which

is readily identifiable.

Your Honours asked some questions concerning

the definition of "mass", and I appreciate we have
all exerted our efforts in endeavouring to do so.

Your Honours, the mass of the object in physical

terms is a measure of its inertia, its resistance

to change in motion, and is measured by weighing

it, that is by determining its weight relative to

the weight of other objects. Of course, there are

provisions for standardizing that process by

reference to particular measures, but,

Your Honours, ultimately - - -

BRENNAN J: Where did you derive that from, Mr Gross?

MR GROSS:  Obviously a physics book, Your Honour. I derived

it - I am not sure I understood it, but,

Your Honours, I do pass it on. Obviously it is

concerned with a comparative measurement as
determined by reference to some point of reference,

namely the standard unit which is a lump of

platinum alloy in Paris and has been there since

1899.      Your Honours, I think that completes my

submission.

BRENNAN J:  Thank you, Mr Gross. The Court will consider

its decision in this matter and will adjourn to sit

in Melbourne and Sydney tomorrow at 9.30 am.

AT 11.46 AM THE MATTER WAS ADJOURNED SINE DIE

Medved(2) 27 14/11/91