ON APPEAL FROM THE SUPREME COURT OF Negligence-Invitee-Piece of wood thrown out by circular saw in factory-Statutory
obligation on occupier to provide guards for " dangerous parts' of machinery- Whether obligation extends to guarding against dangerous materials ejected from machine in motion-Res ipsa loquitar-Application of principle-Whether MELBOURNE, onus on defendant of disproving negligence-Particulars of negligence-Function of-Extension of issues after evidence heard-Considerations governing- Factories and Shops Act 1928 (No. 3677) (Vict.), S. 59 (1).
The plaintiff entered the defendant's building to find the foreman SO that he could place an order for timber. This was the usual procedure of con- ducting business as there was no office. The foreman was operating a power- driven circular saw; it appeared from the evidence that when the plaintiff was about fifteen feet away he was struck in the face by a flying piece of wood and suffered severe injuries. At the trial the plaintiff rested his case on these facts and invoked the doctrine of res ipsa loquitur. By his statement of claim the plaintiff had pleaded that the accident " was caused by reason and in consequence of the negligence of the defendant company and/or its servants or agents", and gave particulars of negligence in par. 5 as follows:-"-(a) failing to take reasonable care to make the premises safe for the plaintiff (b) failing to have proper guards on a saw in order to prevent pieces of wood flying therefrom (c) carrying out sawing operations on the premises in such a position as to endanger persons lawfully on the said premises (d) failing to carry out sawing operations in an enclosed building' The plaintiff had also pleaded breach of duty imposed by the Factories and Shops Act 1928, sub-s. (1) of S. 59 of which provides that every occupier shall provide guards for, inter alia, " all dangerous parts of the machinery of the factory; sub-s. (2) provides that contravention of sub-s. (1) constitutes an offence and that a
fine shall be imposed for such offence. The trial was conducted on the basis that the first claim was confined to an allegation that the defendant had, as the occupier of the premises, failed in the discharge of its duty to the plaintiff as an invitee. After the judge had charged the jury the plaintiff applied for a direction to the jury in terms that would leave it open to them to return a verdict on the ground generally of negligence by the defendant or its servants. The application was refused. The defendant then applied for a further direction to the jury that their consideration was confined to the particular liability owed by an occupier to an invitee. The judge acceded to this appli-
Held: (1) by Dixon C.J., Webb, Fullagar and Taylor JJ., McTiernan J. expressing no opinion, that the obligation imposed by S. 59 (1) is to provide guards for 'dangerous parts" of the machinery and not to provide guards against…
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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AGLC
Mummery v Irvings Pty Ltd [1956] HCA 45
Case
[1956] HCA 45
Decision Date
CaseChat Overview and Summary
The High Court of Australia heard an appeal from the Supreme Court of Victoria concerning a personal injury claim brought by William Mummery against Irvings Pty. Ltd. The plaintiff was injured when a piece of wood was ejected from a circular saw operated by the defendant's foreman while the plaintiff was on the defendant's premises to purchase timber. The plaintiff's case was based on alleged negligence and a breach of statutory duty under the Factories and Shops Act 1928 (Vic.).
The legal issues before the High Court included whether the obligation imposed by s. 59(1) of the Factories and Shops Act 1928 extended to guarding against dangerous materials ejected from machinery, and whether the plaintiff's application to broaden the scope of the negligence claim beyond the particulars pleaded was permissible. The court also considered the applicability of the doctrine of res ipsa loquitur to the facts of the case.
The Court held that the statutory obligation under s. 59(1) of the Factories and Shops Act 1928 was to provide guards for "dangerous parts" of machinery, not to guard against dangerous materials ejected from a machine in motion, drawing on the reasoning in *Nicholls v. F. Austin (Leyton) Ltd.*. Regarding the negligence claim, the Court found that the plaintiff's application to expand the issues after evidence had been heard went beyond the pleadings, as the particulars of negligence were intended to limit the factual issues. The Court determined that there was insufficient evidence to support a finding of negligence on the part of the foreman, and therefore the doctrine of res ipsa loquitur was not applicable. The Court concluded that the trial judge had acted correctly in refusing the plaintiff's application to amend the issues and in confining the jury's consideration to the pleaded case.
The High Court affirmed the decision of the Supreme Court of Victoria, dismissing the appeal. The Court noted that it reserved its opinion on whether a breach of s. 59 of the Factories and Shops Act 1928 resulting in personal injury to an invitee gives rise to a cause of action.