Pacific Dunlop Limited v Chugg; Chugg v Pacific Dunlop Limited; Dairy Farmers Co-operative Limited v Azar

[1990] HCATrans 96

..

.

• JA

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M52 of 1989

B e t w e e n -

PACIFIC DUNLOP LIMITED

Applicant

and

PETER RICHARD CHUGG

Respondent

Office of the Registry

Melbourne No M53 of 1989

B e t w e e n -

PETER RICHARD CHUGG

Applicant

and

PACIFIC DUNLOP LIMITED

Respondent

Office of the Registry

Sydney No Sll6 of 1989

Chugg(2)

B e t w e e n -

DAIRY FARMERS CO-OPERATIVE LIMITED

Applicant

and

GEORGE AZAR

Respondent

C2Tl/l/PLC 137 9/5/90

BRENNAN J

DEANE J
DAWSON J

TOOHEY J

GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 9 MAY 1990, AT 10.02 AM

(Continued from 8/5/90)

Copyright in the High Court of Australia

BRENNAN J:	Yes, Mr Gillard?
MR GILLARD:	Your Honours, at the close of play yesterday

I was taking Your Honours to what the majority said

down below. I refer Your Honours back to page 377

and it is at that page that the majority are

quoting Chief Justice Dixon in DUNLOP RUBBER V BUCKELY
and I emphasize::1 when I read it out yesterday, and

do so again, lines 6 through to 16 on page 377

where Justice du. Parcq described "dangerous" in these

terms, at line 14:

that a part of machinery is dangerous if it

is a possible cause of injury to anybody

acting in a way in which a human being may

be reasonably expected to act in

circumstances which may be reasonably

expected to occur.

approached this matter and, as I indicated to	Now, if we then go over to how the Full Court
Your Honours yesterday, the court did not accept our argument that you look at the particular circumstances on this particular day and we were saying, well, this
was a repair mode; it was not an operation mode.
You have, therefore, got to look at the particular
circumstances on that day to decide whether the hopper
door was a dangerous part of the plant and it was not
a question of saying if it had been in operation mode
it is a dangerous part of the plant because it has a
capacity - because it moves back and forth with a
degree of speed and force - to grab a person's hand
or some part of his body if he should be feeding
rubber into that hopper and in those circumstances

C2Tl/2/JH	138	9/5/90
Chugg(2)

it may be said and, indeed, I think, we would have

to concede that it is a dangerous part of the plant

when the hopper door is operating in that way.

Now, we say you must look at what was happening on

this Saturday. The plant had closed down. The

conveyor had been pushed to one side - we are not

quite sure why but the fact is it had been pushed

to one side. It may have been pushed to one side to

enable the floor to be cleaned but that hopper door

was not going to operate in an operation mode that

day where an operator was feeding rubber into it.

(Continued on page 140)

C2Tl/3/JH	139	9/5/90
Chugg(2)

MR GILLARD (continuing):  So, in our submission, in order for

the prosecution to ma~e good their information under

reguiation 10, they have-to grapple with the

particular facts and they have to say, "Given

those facts, there was a dangerous part of the

plant on that day, that hopper door".

Now, we submit that that has got to be the

proper approach otherwise if the Full Court is

correct, then every time you do a cleaning process

you are committing a breach, if you remove a

guard, for example - the machine is shut down and

your are removing the guard to enable the cleaning

to take place on that day. Now that, in our

respectful submission, iust cannot be right and

you have got to approach this on the basis that

you would look at the facts.

Now, Your Honours, the majority did deal with

it in that way, at page 378.	They say at lines 23
onwards:

The first matter for the Magistrate to

determine as in fact he did, was whether or not
the hopper section of the mill was a dangerous

part of the machine. In arriving at a decision

in relation to the matter, the Magistrate was
required to determine (inter alia) whether the
hopper was such in its character, location,
method of operation and the like that in the
ordinary course of human affairs danger might

reasonably be anticipated from its use unguarded.

As Lord Cooper made clear in MITCHELL's case

the test is objective and impersonal.

In determining the matter, one must look

at the part of the machine in question and ask

if the machine, when operated whilst that part

of the machine is unguarded, could constitute

a danger to the operator of the machine or sorrc

person who comes in proximity to the machine?

It is no answer for the employer to say "The

machine is switched off" or "The machine will

not be operated today". That wou 1 d make an

absurdity of the regulation. One must look

objectively at the machine and determine the

matter by answering the question postulated.

(Continued on page 141)

C2T2/l/SH	140	9/5/90
Chugg (2 )
MR GILLARD (continuing):

In our opinion the evidence in this case

was more than sufficient to justify the

Magistrate concluding that the hopper door

was a dangerous part of the machine. If the

machine was operated whilst the hopper door

was unguarded, there was always the risk

that through lack of care or inadvertence the

operator of the machine or some person in
proximity to the machine might place his hand

or some other portion of his body in the

hopper and sustain injury in the event the

hopper door suddenly closed.

As to the defendant's contentions that

it was not reasonably foreseeable that Everest would test the machine, that in the process of

testing he would place his head and the

upper portion of his body in the hopper and

that whilst in that position the machine would

malfunction causing the hopper door to close thereby crushing him, we simply say that the question of foreseeability of danger does not

relate to the actual accident which

occurred but relates to the risk to life and

limb posed by the machine itself and/or the

part of the machine in question. In other

words, it is no answer for an employer to say,

"I could not have foreseen that an accident

would happen in this particular way". If it

is foreseeable that a machine or part of a

machine might cause injury to a person if it

is operated in an unguarded state, then there

is a duty upon the employer to ensure that

the machine or part of the machine in question

is guarded.

There was no dispute concerning the fact that at the time Everest was crushed in the
hopper the hopper was unguarded.	The case for

the defendant was that it had complied with the

provisions of Regulation 10 -

and they then go on to talk about the conveyor being

in position which is the other point which we do

not wish to argue.	It is our submission that that
is a wrong approach.

If one looks at the regulations - I take Your

Honours to the regulations. Regulations 10 through to 13 represent a - - -

C2T3/l/LW	141	9/5/90
Chugg(2)

DEANE J:  Mr Gillard, could I just try and understand one

aspect of the facts. If the conveyor had been in

the position it should have been, could Mr Everest

have done what he was there to do?

MR GILLARD:  Yes. Could I take Your Honours to a photograph

which I think will demonstrate that. The

photographs are at pages - if we go to page 305,

you will see the top photograph, number 1, has the
hopper door in the middle of the photograph and, indeed, it is open. The hopper door is open, in

other words it has come back. Where those two

gentlemen are - just where they are and a little

bit to the left is the area where he was carrying

out the modifications. You then see from photograph

number 2 that the conveyor has been pushed away to

the right. Actually you can see it in number 1 also.

It was on rails, as you can see there.

So if one then goes over to page 307, photograph

number 6, you will see the door has actually gone

through and is closed. You will also see,

Your Honour, that there is a bar where the ram

starts, so in order to get your head and body into

the hopper open section you would have to lean over

some considerable distance to get yourself into that

position. Then photograph number 14 at page 311

has the conveyor in position,arrl indeed that is a

good photograph to show Your Honours the panel to the

left which he was working at. He was changing certain

valves in the area to the left of the hopper section

and there was no necessity for him at any stage to

go anywhere near that hopper door. In other words, having carried it out - let us

assume, and I think I would concede that it was

foreseeable that he might try and check it, because

most people like to think that they have done a job

and they like to check it themselves, even though

he was told not to, so that, I suppose, was

foreseeable, but it was not foreseeable that he would

move over and place his head down into the hopper for	any reason when he could have - I suppose it could
be said that because the discharge door was right
at the bottom of this Banbury Mill, many feet
down below, it is conceivably possible that he
may have been looking down there to see if the
discharge door was open or not.

(Continued on page 143)

C2T4/1/HS	142	9/5/90
Chugg(2)

MR GILLARD (continuing): Now, he would

have enormous difficulty in seeing. He may see

reflected light, but so far as saying, "In the

automatic phase these things happen, we are now doing it so that you mainly override it", there

was no basis or reason for him to go any where
near that hopper door, even assuming he was going

to test it and there are two unforeseeable aspects

about it, in our submission; one,placing his body

in that position would be like putting your head

into the lion's mouth, in our respectful submission,

and the other thing that was unforeseeable, as the

magistrate found out is that as a result of those

electrical changes or modifications earlier it was

unforeseen that that would still cause, when the

manual operation was in process, it would still

cause the hopper door to close without warning.

BRENNAN J: What did cause the hopper door to close?

MR GILLARD: Well, I really cannot answer that, Your Honour,

obviously something - with the automatic phase

once the discharge jaw at the bottom closes_-no

that is not right - - -

BRENNAN J:  You would think you would have to push a switch

or do something to - - -

MR GILLARD: 

One would have thought that he would probably

put it in the automatic mode and then attempt to
operate it in the manual mode; the automatic

mode would ensure that the door would stay open

for a certain period of time but if the discharge

door opened at the bottom the hopper door would

shut because that was the purpose of the original
modification. When the discharge door opened

at the bottom the hopper door after a lapse, I think,

of nine seconds automatically shut, the reason being

they did not want the rubber to fall through.

Now, one could perhaps assume, or guess, that
what he di~ having fixed the valves for the manual

override,that he then operated the manual override
thinking it would operate and that, in fact, that
is one of the things that the magistrate said was
unforeseen that it did not, it still operated in the

sense that the hopper door shut.

C2T5/l/JL	143	9/5/90
Chugg(2)

TOOHEY J: Well, Mr Gillard, when the term "malfunction'' is

used, as it is used from time to time in the

material, what is meant by it?

MR GILLARD:  I think, Your Honour, it was not expected that

it would shut once you put the manual override

into operation. In other words, it would override
the electrical function that was in place due to

the modification. Now, I think I am correct in

saying that. I did not actually appear at the

hearing and so I could be corrected there.

DEANE J:	Can I just test your argument by one further question and that is,-if you look at No 14 on page 311 - assume that after the machine had been
going for a couple of minutes something would unexpectedly emerge from behind that door which
would injure anybody standing in front of it
and assume that the conveyor belt did constitute
an acceptable guard against that danger, if, in those circumstances, Mr Everest had been
killed by that coming out when the guard was removed, on your argument would your-client have
been guilty of an offence by reason of the failure
to have the guard in the circumstances of this case?
MR GILLARD:	Well, no, because we would say it would not be

reasonably foreseeable that he would move into

that position in order to carry out any testing

but that is the only basis upon which I could put

. it because that - - -

DEANE J: Well, that does identify the problem though, does

it not, and that is if the need for a guard over

that hopper door was not only to protect the person

loading the rubber but was also to protect
individuals in the vicinity of the machine when,
for whatever reason it happened to be working even

though there particular actions could not be

foreseen, the answer would be against you?

MR GILLARD:	Yes.
DEANE J:	On the other hand,you try and identify a precise
circumstance and say, "Well, that is - - -
MR GILLARD:	Yes.

DEANE J: Yes, I understand .

C2T6/l/DR	144	9/5/90
Chugg(2)

MR GILLARD:	Yes, well, as we say, the danger does come about because of the movement of that hopper door and
it is not foreseeable that in testing,and we concede
it would be foreseeable that he might test it, and that he woulc
place himself into a position of danger on this
particular day and we say that the findings of
the magistrate support that and we will come to that in a moment, but - - -
DAWSON J:	There are two distinct bases on which you put your
case. In the first place, the machine was not in
normal operating mode and therefore there was no
need for a guard, because you have to repair a
machine or adjust it and so on, and in that event,
although there may be no obligation to provide a
guard, there may be other means of providing a
safe working environment, for example, ensuring
by some means that the machine is not switched on
while someone - - -

MR GILLARD: Well, I do not really need to worry myself,

in our submission, about the first point, because

it was not operating on that day. What I am

saying is that the prosecution have chosen to

hit us under 10, not 11, under regulation 10. They

have to demonstrate the circumstances on that day

that make it an offence. Now the object of these

legislations is clearly to protect the operator or

the person moving nearby, but it cannot be denied

that,in certain circumstances, the object is to

protect the repair man, and it may be that, given the particular circumstances on the day, you must

guard it, because even though he is repairing it,

if it is a dangerous part of the machine, taking

into account what was foreseeable on that day,

given those facts.

DAWSON J: That is going back to the first point. It may be

quite impracticable to guard the very part that

has to be worked on.	I would say that that is
this situation.

MR GILLARD:	Yes, well that is so.
DAWSON J:	In which case it will not be practicable to provide
guards, but there may be other means of providing a safe working environment in that situation, which
is ensuring that the machine is not switched on,
for example, whilst he is working on it. That is
one situation. The other situation is, of course,
you say, "Well anyway, it would not be foreseeable,
notwithstanding this man was working on this part, that he put his head in it. 11
MR GILLARD:	That is quite right. That is so, with respect.
C2T7/1/CM	145
Chugg(2)
DAWSON J:	They are two distinct bases.
MR GILLARD:	Yes, though I emphasize rrore the second than the

first, because, in my submission, we do not have

to go as far as the first. The second is, we say,

that you look at the facts on this day, which

happened to be a repair mode and you say, "Looking

at all the facts, was it reasonably foreseeable

that this man would place his head in this

trapping space, taking into account what was to

be done on that day?".

TOOHEY J: What was the space, Mr Gillard, relative

to the size of the persons head? I mean, what

sort of space are we talking about?

MR GILLARD:  I think a fairly big space, Your Honour, about

a number of feet, three feet perhaps, and maybe

another three or four feet in depth or width, I

suppose, if you call that the length and the width,

and in order for him to get into it, as you can

see from photograph 10 on page 309, you can see

that that is where it is open. It is number 10

at 309 - you will see a bar which would be where

his legs would be; to get his head he would have

to get over that horizontal bar, so you would have

to move some distance to get right down to look

into it.

TOOHEY J:	I do not know if this is a silly question, but
could you fall into it?
MR GILLARD:	Most unlikely if your feet were on the ground, no, most unlikely. I do not believe that you
could tumble over it, but if you were higher than
it you could fall into it, I suppose, but not if
your feet were on the ground.

DAWSON J: In a sense your two arguments mesh into one another,

because you say, "Well, if it was foreseeable that

he would be doing what he was, then that was part

of the repair operation and therefore it would be impracticable to provide a guard. If it was not foreseeable, then there was no need to provide a

guard", so that the arguments complement one another,

do they not?

MR GILLARD:	Well I am prepared to accept that, Your Honour, yes.
DEANE J:	But I thought you had told me that there was no reason

at all for the conveyor to be moved.

(Continued on page 147)

C2T7/2/CM	146
Chugg(2)

MR GILLARD:  No, there was not. ·There was no necessity to

move it.

DEANE J:	And to have that whole thing completely unguarded.
MR GILLARD:	Yes, that is so.
DEANE J:	Am I correct that it a sort of self-contained thing

behind the hopper door in the sense that if, for

example, he was curious to find where the wires

went behind the precise part he was working on, it
would not occur to him to put his head in and have

a look?

MR GILLARD:  No, there is no necessity for him to put his

head in there.

DEANE J:	Is there a solid wall between?
MR GILLARD:	There is a wall but there is a door; you can go

around behind that. Indeed, if you have a look at

photograph number 5 you will see a close-up of

the various items that he was working on. You will

see a little open piece at the top of that photograph; and,

in fact, there is a window there and you can look

through the window and you can actually see the

Banbury mill around to your right and, if I remember

correctly, there is a door to the left again of that

photograph where you can around the back of that wall.

So, what he was doing really had nothing to do with

the way that hopper operated or the actual mill

operated. He was changing various items there to

enable it to manually override the electrical system

and there was no necessity for him to go and have a

look at the hopper or look down through the hopper

under any circumstances. We submit that one has to

look at the circumstances on that particular day.

BRENNAN J:	Mr Gillard, that is not the way in which the Full Court looked at it, is it? As I read what Their Honours said at page 379, what they are saying is,	"Forget all about the Saturday except for one purpose",-	to which I will come in a moment. "Looking at this
machine, it is clear that this was a dangerous part of the machine that needed guarding; it was unguarded.
If we leave aside the conveyor belt, that is not
sufficient.  Come Monday morning, it will be unguarded;
it will be dangerous in its operation. Now, looking
at the machine in itself, forgetting about what
anybody is doing in relation to it, we say, that is a
dangerous and unguarded part of the equipment at the
plant. On the Saturday, as on, for that matter, any
other day, the employer failed to guard it, ergo, conviction."
Now, it has got nothing to do then with what happened on the Saturday, in fact.

C2T8/1/JH	147	9/5/90
Chugg(2)

:t1R GILLARD:  If I might say so, with respect, that overlooks

what the test of "dangerousness" is. The test

has been laid down over many years that you look

at the foreseeable consequences of what is

happening on that particular day.

BRENNAN J:	Where does it say, "On that particular day"?
:t1R GILLARD:	We would submit that if one goes back - well, perhaps, the easy place to find the test neatly
stated is in WEARING V PIRELLI, (1977) l All ER.
At page 344 in the leading speech of
Lord Edmund-Davies, he refers to the well-known
test of dangerous parts stated by Mr Justice Wills
at the bottom.  Then he goes over the page and he
says this:

This test, d,_, 0ending as it does on the

circumstances of each particular case .....

has been consistently applied ever since.

It was authoritatively adopted by

your Lordships' House in CLOSE ..... where

Lord Guest, after reviewing the intervening

authorities, said that it resolved itself

into whether the part of machinery

complained of might be -

'a reasonably foreseeable cause of

injury to anybody acting in a way

in which a human being may be

reasonably expected to act in

circumstances which may be reasonably

expected to occur.'

Now, there are three parts to that, in our submission,

and if you take the last one, we must be talking

about the Saturday and what is going to happen on

that Saturday.

(Continued on page 149)

C2T8/2/JH	148	9/5/90
Chugg(2)

TOOHEY J: But the date is only significant, is it not, as

pointing to a question that has to be asked and

answered? If this machinery was dangerous,

on the day in question was there a failure to

provide guards? And you may have machinery that

is dangerous on day one as in this case.

let it be assumed that the conveyor belt was a

sufficient guard, it was guarded dangerous

machinery. On another day, the day in question,

it was not guarded, this machinery.

MR GILLARD:  But it was not a dangerous part of the plant on

that day because it was not operating.

DEANE J:	But assume there was a guillotine behind this door	that
would cut off anybody,' s hand that was uut into it.	Your
argument is really that you are not liable if you can say, "Who could have expected him to put his hand in on that day when he was the only person
there?".

MR GILLARD: Well, it depends. I mean, again it must depend,

with respect. If it was a burglar messing round

there who did not know anything, you would not expect

that those circumstances would occur on that day.

It must depend upon what the circumstances may

reasonably be expected to occur on that day.

DEANE J:	But once you bring it down to that point, what on
earth are we doing with it?  I mean, it has become
just a straight question of the facts of the particular case.
MR GILLARD:	No, with respect, Your Honour, the Full Court

seemed to have adopted the approach of saying that

if it was operating on that day, it was dangerous.

It cannot be denied.	But we say that is just not
the test.

DEANE J:	I doubt that the Full Court would have said if a
burglar had got in and had been trying to steal
something, the position would not have been different
if it was only dangerous to the burglar trying to
steal.

MR GILLARD:  Yes. Your Honours, I do emphasise that the

regulation talks about a dangerous part and the
English authorities have - and there are unbelievable English authorities on all this about various things - but they have always emphasised

it is a dangerous part of the plant and, indeed,

I think there is .even authority that even if

there is not a dangerous part, but there is a

dangerous plant, that is not good enough.

C2T9/l/LW	149	9/5/90
Chugg(2)

If mean, that is the distinction that they have drawn in England on one occasion, I seem to remember. There were not dangerous parts but

as an overall plant it was dangerous, no offence.

Now, that is what I emphasise, dangerous part. What is the part? The hopper door. Why is it

dangerous? Because people feeding things into

it could get hands or something caught or somebody

going by, therefore you must guard.	But on this
day, they are not operating it.

DAWSON J: It is an astonishing conclusion, is it not, that

it is dangerous on Friday, it ceases to be dangerous

on Saturday and Sunday and resumes being dangerous

on Monday?

MR GILLARD:  Yes, but we are talking about the repair situation

on that day. Now, Your Honours, could I just take you to those regulations where it says "dangerous part

of the plant" and that is what we are arguing about.

Is this hopper door on this day a dangerous part

of the plant?

If you go to 11 - and this is a code setting out, in our submission, ·guarding dangerous machines

you find that you must keep that guard there at all

times and:

while the plant is in use or in motion.

Now we have not been prosecuted under that and it may

be that if we were we would be saying it was not

in use or in motion that day, therefore, we were not

obliged to keep it guarded and that is how - - -

(Continued on page 151)

C2T9/2/LW	150	9/5/90
Chugg(2)

GAUDRON J:	It must have been in motion,must it not?
MR GILLARD:	Well, I referred to that House of Lords case yesterday where the House of Lords said, "motion
meant motion" and "use meant use".  They have
not charged us under that so we get back to 10, they have charged us under 10, and their first step,
in our submission, is is it a dangerous part of
the plant. Now, if it is not operating - - -

BRENNAN J: No, the first step is did you provide anything?

MR GILLARD: Well, we did not provide anything, I accept that

and it was pushed to one side for some reason.

BRENNAN J: And 11 deals with what is to be done with the

thing provided.

MR GILLARD:  Yes, yes. But your obligation to guard is a

dangerous part and when it is operating it has
a capacity to be dangerous, that is clear. We

say that you must look at the circumstances on

the day and, indeed, the English cases - I mea~,

there are some unbelievable artifical distinctions

but the provision has always been strictly

interpreted and you have got to say to yourself,

"Is it dangerous?". Now, as we say, there are

three things to consider if you go back to what

was said in WEARING V PIRELLI and which seems to

accord with what Chief Justice Dixon said when he

quoted Justice du Parcq, is it'~ reasonably

foreseeable cause of injury to"a person, and the

second is, "acting in a way in which a human being

may be reasonably expected to act'and three,"in
circumstances which may be reasonably expected to
occur". Now, we submit, that if you apply that

test here, based on the findings, you cannot conclude

on that day that it was a dangerous part of the

plant because he was not there to operate the machine

or feed anything into it.	He was there to do a
repair job~ It is foreseeable that he would test it

contrary to instructions, but the next step is, was

it foreseeable or anticipated that he would then

place his head into the hopper. Now, that is our

submission with respect to that. If I could

take Your Honours, just to complete tha4 to findings

at 345. Now these are findings that the magistrate

made with respect to the other charges and 345,

finding 4:

That the defendant could not have foreseen

the malfunction of the hopper door because

of the modifications which were carried out

on 26 October; and

C2T10/1/JL	151	9/5/90
Chugg(2)

5. That the carrying out of the maintenance

work did not involve ..... Everest placing

his body in the trapping space.

If one then goes down to the bottom of that page, at

line 19:

That the electrical modifications carried

out on 26 October had an unforeseeable

consequence.

And, over at page 346, line 20:

The modifications had been carried out on the

Banbury Mill on 26 October 1985. Mr Waddleton,

the deceased's supervisor, informed the

Court that he was aware of the modifications

and that he had told the deceased to be

careful and play it by ear.

Now, in our submission, having made those findings,

it is our submission that the magistrate should have

dismissed the information because it was the

circumstances were unforeseeable. Now,

Justice Ormiston, just for completion, at page 421

said - this is line 20:

(Continued on page 153)

C2T10/2/JL	152	9/5/90
Chugg(2)
MR GILLARD (continuing):

The apparent inconsistency between

the finding on the seventh information

and that on the first and second

On the charge under the regulation the learned Magistrate held that the hopper door was a dangerous part of the mill.	informations here has some significance. a hazard or risk of the relevant kind.
As he repeated in his judgment the dicta which defined danger in terms of
that which may be reasonably anticipated,
he ought also logically to have found
that the employer knew or ought to
have known of the hazard or risk.
Nevertheless, when the Magistrate had
earlier dealt with the question of
reasonable foreseeability for the
purposes of determining liability
under s.21, he had found that the
respondent employer could not have foreseen the malfunction of the hopper door caused
by the electrical modifications and that
11 an unforeseeable consequence 11 • There is thosemodifications had had, in his words,
a clear inconsistency in these findings.

Then, when he deals specifically with this matter

at page 427 Mr Justice Ormiston says, having referred

to dangerous - this is at line 13:

After these passages the learned

Magistrate proceeded to conclude his

reasoning .....

"On the evidence, I have come to the

conclusion that the hopper door was a

dangerous part of the Banbury mill. In

my opinion, once it is established that a

part of the machinery is dangerous, then

the duty on the defendant is absolute,

provided it was feasible to provide guards.

On the evidence I am satisfied that the

breach of regulation 10 has been proved."

No other basis for his conclusion appears,

although no objection has been taken ..... the Magistrate failed to give reasons for

his order. In ordinary circumstances one

might have assumed, in favour of the

Magistrate's conclusion, that he had

taken into account the tests appearing in the cited passages. However in the

present case there is not the slightest

C2Tll/l/HS	153	9/5/90
Chugg(2)

explanation why in relation to the

first two informations the Magistrate

had held that the defendant Dunlop

could not have foreseen the malfunction

of the hopper door caused by the

electrical modifications and yet on

this information he held the same

hopper door to be dangerous without

considering whether or not the defendant

might reasonably have foreseen that it

could be a "source of injury". In truth

the two findings are inconsistent and

the latter determination of guilt cannot

stand with the earlier fact finding. It

matters not that one may have doubts as to
whether Dunlop could not reasonably have
foreseen the unguarded hopper as a source of
danger: it was open on the evidence for the
Magistrate to so find and, as he did, on its
face that would deny the dangerousness of

the hopper for the purposes of regulation 10.

Then he said that ground (a) has been made out,
he would have ordered that the conviction be quashed
and that it be remitted for a rehearing according to
law. It is our submission here that the majority were

wrong, they did apply the wrong test, they should have

applied the test to the facts as they were on that day,

and, in our submission, a proper application of the

right test would have led to the conclusion that the

hopper door on that day in those circumstances was

not a dangerous part of the plant.

TOOHEY J:  Mr Gillard, I note in Justice Ormiston's judgment

on that page at line 14 His Honour says:

I should add that both parties accepted -

and then there is reference to the test to be applied.

MR GILLARD:  Yes.

TOOHEY J:  Does that have any implications for the present

argument?	If it does not, then we can forget about
it.

MR GILLARD:  Yes, we accept that that is so, that that is the

part of the test.

(Continued on page 155)

C2Tll/2/HS	154	9/5/90
Chugg(2)

:MR GILLARD (continuing): Now, Your Honours, we have prepared

some submissions but it is unnecessary to go through

them.	Could I just correct paragraph 10 - it is
at page 4 of the submissions?	I have got in the

middle there: "In support of this we rely upon the

findings made as follows", and then I set out our

reasoning. You should add the words "upon the

findings made" and then add "as set out in

paragraph 7". So, it should read, "In support of

this we rely upon the findings made as set out in

paragraph 7", and the paragraph 7 of those

submissions sets out the magistrate's findings.

So, in other words, we build on those findings.

Then, as I say, we do not seek to argue that the conveyor was a proper guard. It would be our submission - perhaps we should also add this that

within the event of the Court upholding our

submission, that we would ask that the conviction

and order for costs below be set aside and remit

the information to the magistrate with direction

that he dismiss it and further consider the question

of costs because costs were awarded at first instance

on that conviction.

Now, Your Honours raised yesterday the question

of special leave. It would be our submission, if I could now come to the second limb of my learned

friend's argument, that even if the onus was on the

prosecution throughout they had discharged that onus. You may, of course, recall that they highlighted

what appeared to be on the face of it an error made

by the two judges. In our submission that does not

involve a question of law - that particular ground -

and it clearly does not involve a question of law

of public importance and it would be our submission,

with respect to that par4 Your Honours should rescind

the special leave.

I think Your Honour also raised with me

yesterday the question of what our attitude should be

on this present matter that I have just been arguing.

Can I say this - and we have photostatted all the

legislation around Australia which we have handed up

to Your Honours this morning. It indicates that,

other than Queensland - and we have not bothered

with Northern Territory or the ACT - but all the

other States have similar type legislation in the

sense that you are bound to guard dangerous parts

of plant. Now, Your Honours, I have just had

handed to Your Honours the legislation. Victoria -

well, we know about Victoria. One goes to the

second page which is South Australia, it is

regulation 27(l)(a):

The occupier of an industrial workplace where

power driven machinery or equipment is located

must ensure -

C2Tl2/l/DR	155	9/5/90
Chugg(2)

that all moving parts ..... and all dangerous

parts of driven machines are effectively

fenced -

So, that is South Australia. Western Australia,

regulation 402 - and at the top of the page you

will find the reference to each State - regulation 402:

The owner of any plant shall ensure that

every dangerous part of the plant is securely

fenced or guarded -

Queensland is the next - I do not know whether it

is marked on the top of Your Honours' papers but

it has a regulation 132 and in that there is a

definition of "safeguard". It:

means a guard -

and then if one goes over to 133(7) on

the next page, the obligation in Queensland is:

An employer shall provide effective safeguards
where an employee may come into contact with -

(Continued on page 157)

C2Tl2/2/DR	156	9/5/90
Chugg(2)

MR GILLARD (continuing):  Now, we have not been able to find

anything in Queensland that raises the dangerous

point and, subject to that correction, we do not

believe there is anything in Queensland.

If one goes to Tasmania, some pages over, you

will find regulation 171(1) and it provides that:

Every occupier ..... shall provide guards for

all dangerous parts of the machinery -

and then, New South Wales, which is the FACTORIES,

SHOPS AND INDUSTRIES ACT, section 27(1):

The occupier of a factory shall securely fence

all dangerous parts of the machinery -

and, indeed, it is no doubt in New South Wales there

has been some litigation relating to "dangerous".

DEANE J:	Mr Gillard, if one goes through your written submissions,
one gets the impression that the closest one comes
to a question of law here is in paragraph 9 which says
that no question of law is involved. That is put a
bit unkindly, of course.
MR GILLARD:	Yes, it is, with respect, but -
DEANE J:	I was just wondering how would you identify the question
of law which you see is involved in this appeal?
MR GILLARD:	In applying the test of dangerousness, do you apply it

with respect to the particular facts that are prevailing

at the time or by considering the particular machine

when it is operating in a normal mode or a repair mode

or exposing people to danger walking passed and that

is the point that we wish to make; that we say that

the Full Court's approach was wrong and that that

cannot be left to stand.	They are our submissions,
Your Honours.

BRENNAN J:  Thank you, Mr Gillard. Yes, Mr Dwyer.

MR DWYER: If the Court pleases, a number of the matters raised

with and by my learned friend this morning go to some

of the particular matters of fact. I did just want

to tell the Court that all the relevant dimensions

of this machine appear in the appeal book in the

evidence if Mr Chugg at pages 352 and 353 and, in

particular, the hopper door is 830 millimetres square

by 12 millimetres thick.

TOOHEY J:	What page did you say, Mr Dwyer?
MR DWYER:	Pages 352 to 353.  That is the reference - I beg the
Court's pardon, it is at page 22, at the foot of the
page, and the top of page 23. It is on page 23 that

C2Tl3/l/SH	157	9/5/90
Chugg(2)

the dimensions of the hopper door are given.	The
hopper door had 580 millimetres of travel.	The

metal roller to which my learned friend drew the

Court's attention is 975 millimetres high, just

short of one metre above the ground.

In terms of understanding what happened on the

particular day, the outline of the fact~ in our
submission, in the other appeal contains a summary
of the evidence in that regard and I will not take
the Court through it but paragraph 12 and the

following paragraphs explain the cycles of operation

that were involved and could I just draw the Court's

attention to the fact that there are in evidence in

the appeal book a number of charts which explain in

a simplified way how the cycles of operation worked

and those charts, together with the summary of the

evidence that is contained on pages 7 and 8 of our

written submissions will, I think, fully explain how

the machine worked.

(Continued on page 159)

C2Tl3/2/SH	158	9/5/90
Chugg(2)

MR DWYER (continuing):  The particular problem that arose

was this: before the modifications, when the

discharge door opened, it triggered an electrically

operacted limit switch which opened the hopper

door; the modification that was done was to

reverse the operation of the limit switches, so
that after the modification if you opened the

discharge door, that triggered limit switch one,

which closed the hopper door and it did so when

the discharge door had moved to the full extent

of its travel. That is why there was a nine

second delay between opening the discharge door and

the closing of the hopper door. The references

to the appeal book evidence are contained in

that outline of the facts. Going to,firstly, the

regulation 10 matter, we have put in written

submissions, and I will not take the Court through

them, but I correct two matters in the written

submissions. On page 4 in subparagraph (e) on

that page, in the third line, there is a word

"not" that should not be there. That is, the
sentence should read, "But the circumstances of

the accident are merely evidential in determining

whether the part was dangerous".	So that "not"
is there by mistake.	On page 9 of the written

submissions, I apologise to the Court for the

fact that the computer has inserted randomly

the capital letter "H" in the two subparagraphs

that are at the beginning of that page. That is

something which had not been observed when the

submissions were filed and the name of the case on

that page in paragraph 13 should be FORREST V

JOHN MILLS HIMSELF, not John Wills Himself.

Could I say this concerning the case as it is

now put, it is really confined to one issue, which

might be described as an issue of whether the test

of dangerousness is particular or is general, or
another way of putting it, whether dangerousness is

a transient feature of the part of a machine, or

whether it is a permanent attribute of a part of

a machine. Now, our submission is that the

foreseeability that is involved is in general terms

rather than in particular terms and that the

attribute of dangerousness is a permanent rather

than a temporary attribute of a machine, but could we say this, the issue as it has now been confined

is an issue on which the magistrate made no finding

at all. That is the point on which my learned friend

now rests entirely is a finding, if one could call

it that, that emerged only in the Full Court below.

It is not in the magistrate's reasons at all and,
we say, it is not within the grounds of the order nisi
which was obtained in respect of the magistrate's

reasons. It is something which has only emerged in

C2Tl4/l/CM	159
Chugg(2)

the Full Court. What the magistrate did do, as

my learned friend has made plain, was find, as

a matter of fact, that the hopper door was a

dangerous part and we say there was abundant

evidence on which he could make that finding of

fact, and there is no basis on which it can be

said that that finding was not open to him.	It
is plain from the magistrate's reasons that he
applied the well-settled test in DUNLOP and we

say no issue of law arises, because that test is

well settled and was correctly applied. What my

learned friend has endeavoured to do is introduce

a new qualification on that test in terms of

requiring that dangerousness be tested by reference
to the particular circumstances of the happening

of an accident and that he is driven to the position

described by Your Honour Mr Justice Dawson as odd,

that a machine might be dangerous on Friday; not

dangerous over the weekend and then dangerous

again on Monday.

(Continued on page 161)

C2Tl4/2/CM	160
Chugg(2)

:tvlR DWYER (continuing):  Now, that question is not free

from authority. The House of Lords has directly

attended to that question and they have done so in

two cases, CROSS V MIDLAND AND LOW MOOR, (1965) AC 343

and JOHNSON V CALLOW, (1971) AC 335. In

CROSS V MIDLAND AND LOW MOOR, the particular

passage is in the judgment of Lord Evershed

beginning at page 367 and if I could take the Court

first in the paragraph beginning F:

As it seems to me, the question whether it can properly be said that some part of a

piece of machinery is dangerous must

depend upon considering whether such

danger exists and arises from the normal

operation of the machine, that is, from
the purposes of the mechanical work which

the machine is specifically designed to

achieve; and if a part of such a machine

becomes undoubtedly dangerous from such

normal and projected operation then it

follows that such part of the machine is a

dangerous part within the meaning of

section 14(1).

That is, if that test is Satisfied the part carries

the attribute of being dangerous. And then on the

next page, page 368! by reference to what had been

said in the Court or Appeal - really we rely on the

whole of what is said on page 368 but could I draw

attention, in particular, to the passage which is

adopted and affirmed at che foot of the page from

tfie language of Justice Lynskey:

One has to have regard to the purpose of

the FACTORIES ACT which is to protect

operatives from danger; and if danger

does exist from the operation of the

machine, and if a part becomes dangerous

from the operation of the machine, it seems

to me that that is a dangerous part of the

machinery, and the fact that it is not so

when no operation is taking place is quite
irrelevant.	What the Act requires me to

look at is whether in fact this machine is

in operation, and being worked as it was

designed to work, it becomes a dangerous

part of the machinery as a result of the
operation; not the component being dangerous

but the operation of the machine making it

dangerous.

What was said in CROSS V MIDLAND AND LOW MOOR

IRON & STEEL CO LTD was approved by the

House of Lords in JOHNSON V CALLOW.

C2Tl5/l/JH	161/162 :tvlR DWYER, QC	9/5/90
Chugg(2)

:MR. DWYER (continuing):  JOHNSON V F.E. CALLOW LTD, (1971)

AC 335, page 350, Lord Chancellor Lord Hailsham

says, at line B - he applies the standard test

from Lord Cooper in MITCHELL V NORTH BRITISH

RUBBER and then goes on:

Secondly, in considering whether a part

of the machinery is dangerous within the

meaning of section 14 one must have regard

to the operation of the part while the

machine is doing its ordinary work and not

when it is stationary.

And then one can see a little further down:

I take this to be the result of CROSS V

MIDLAND AND LOW MOOR IRON AND STEEL CO. LTD.

We rely on those cases but we say, in any event, the machine was being operated by Everest on this

particular day. It was because he operated the

machine when the part was unguarded that he was able

to put part of his body into the trapping space and

was killed.

Now a problem has emerged both during my learned

friend's submissions yesterday and then, perhaps,

today in terms of what happens if for some purpose

such as cleaning a guard has to be moved. There are

well recognized techniques for attending to that

situation and a repairer is entitled to be protected

as any other worker and a maintenance worker is as

entitled to be protected as any other worker.

One of the standard techniques is to have a locked

switch so that before commencing work the worker
can, with a key, turn off the electrical power

and there is a lock on it so that nobody else can come along and turn it on again. Another is that you have an interlocked guard so that if the guard

is opened or moved aside for some reason, the power

is automatically disconnected and must remain

disconnected while the guard is moved out of position.

Or you may rely on a physical restraint such as a

block of timber or an iron bar to prevent a part from

closing. All of these matters are simple and well

known in industrial safety and, of course, none of

them were provided to this machine when this man was

working on it.

Contrary, I think, to what my learned friend

suggested, there are a number of cases specifically

dealing with the operation of this section while a

machine is having maintenance work carried out on it

and I will simply indicate to the Court what they are.

C2Tl6/l/LW	163	9/5/90
Chugg(2)

There is BOURONICOS V NYLEX CORPORATION LTD,

(1975) VR 120, where the worker was cleaning cutting

blades with compressed air and removed the guard

in order to clean the blades and his hand was

taken off by the blades and it was held in that

case that there had been a breach of the equivalent

of this section. The language used by Mr Justice Pape

in that case is strong in terms of the absolute
operation of the protection given by the section.

In WILLIAMS V SYKES AND HARRISON LTD, (1955)

1 WLR 1180, the worker was cleaning a conveyor belt
at the time when the accident happened and it was

held there had been a breach of the guarding

provision.

(Continued on page 165)

C2Tl6/2/LW	164	9/5/90
Chugg(2)

MR DWYER (continuing):  In BELLIA V COLONIAL SUGAR REFINING,

(1961) 78 WN(NSW) 238, maintenance work was being

carried out at the time that the breach of the

sect ion took place. In FOREST V JOHN MILLS HIMSELF,

(1970) 121 CLR 149, the injured worker dropped a

spanner while he was repairing another machine and
went to retrieve that spanner and was caught by the

unguarded machine in that case and it was held there

had been a breach of the section. In SMITHWICK V

NATIONAL COAL BOARD, (1950) 2 KB 235, the worker was

repairing a torn conveyor belt and it was held that

there had been a breach of the section.

Injuries being caused by unguarded machines

during repair or maintenance are matters of common occurrence and it has never been contemplated that

workers cease to be protected from the operation of

this regulation or its equivalent in those -

circumstances. As to regulation 11 on which my

learned friend relied, we say it is simply irrelevant

and has nothing to do with whether or not there was a breach a section 10. The Court has been taken to

something of the history of this section but since

1914 the duty in Victoria has been cast in the terms

that are now contained in regulation 10, save as to

this; the duty used be cast in a requirement that

there be guarding so as to prevent "as far as possible"

loss of life or bodily injury and that has been

changed to use instead the formula "so far as is
practicable", but our submission is that it was not

intended to lessen the protection for workers by

making that change and it had been held under the

previous legislation in Victoria in BOURONICOS's

case that section 174 of the LABOUR AND INDUSTRY ACT

1958, the forerunner of regulation 10, imposed an

absolute duty to guard dangerous machinery and the

provision was continued in the same form in section 16

of the INDUSTRIAL SAFETY HEALTH AND WELFARE ACT 1981

and the alteration in regulation 10, in our submission,

does not alter that result.

We say that it should still be regarded as an

absolute obligation to guard subject to a defence

of impracticability, and that is how the legislation

works in England and we say that that is the

appropriate way. We would point out to the Court

that the guarding offence under regulation 10 is much

narrower in its factual compass than a section 21
offence with which the other appeal is concerned and
to contrast the interrelationship of the two we would
say that an unsafe system of work may well be the
root cause of which an unguarded machine is but a

symptom, and we say that the objects of the legislation

are better served by section 21 prosecutions than by
regulation 10 prosecutions where they are open. That
is, I think, subject to one matter, all that it is desired

to say concerning the regulation 10 matter.

C2T 17 /1 /HS	165	9/5/90
Chugg(2)

MR DWYER (continuing): We would say this: there was a

concession in the evidence of Dunlap's expert,

Mr Purdy, at pages 245 and 246, that it was foreseeable

that this worker would seek to test the work that he

had done by operating the machine.

BRENNAN J: Well, that is conceded, is it not?

MR DWYER:  It was not clear to us how far the concession went

and we draw the Court's attention to that evidence but

we say that the appeal should simply be dismissed

for those reasons.

BRENNAN J:  You do not seek a revocation of special leave?

MR DWYER: Well, we do say, on that point, that because it

was a question of fact which did not bring into question the well-settled rule in DUNLOP's case that special leave should not have been granted and

that this would be an appropriate case for revocation

of the grant of leave.

If I could turn to the question of reply in

the other appeal. First of all, although it was not

contained in our list of cases, could I inform the

Court, as I think I did but I could not see it in

the transcript, that the decision of Mr Justice Fullagar

on the form of the original information is reported

in CHUGG V PACIFIC DUNLOP, (1988) VR 411. Now, my

learned friend had something to say to the Court

about the operation of section 168 of the

MAGISTRATE'S (SUMMARY PROCEEDINGS) ACT. We have had

prepared and handed to the Court a. list of cases in

which that section has been applied simply as

illustrations of the way in which the section has

worked in operation and what we do is set out the

name of the case and, in most instance, the nature of the statutory provision that was in contest and the cases are summarized under headings which show

how the section was applied. That is, we have

gathered together cases where the onus of proof was

part of the prohibition - that is the first two	said to be on the defendant to prove an exculpatory
pages.

Then we have listed two cases where the onus

of proof was said to be on the prosecution to rebut

an exculpatory element part of the prohibition.

That is on page 3 and on page 4 we turn to cases

where the onus of proof was said to be on the

defendant to prove an exculpatory element contained
in a separate exemption proviso, et cetera. On page 5 we

have the one case where the onus of proof was said

to be on the prosecution to prove an exculpatory

element contained in a separate exemption proviso,

et cetera.

C2T18/1/DR	166	9/5/90
Chugg(2)

We should point out tha4 in strictness,

DOWLING V BOWIE was not a section 168 case because

there was no ordinance in the terms of section 168

but it is treated as being a case at connnon law

which works in a similar way. In relation to those

cases, we rely on the analysis and the criticisms

made by Sir Francis Adams in the work to which we

have referred the Court on "Criminal Onus and

Exculpations". Now, what we say about the way in

which the section should be regarded as working

is this, that apart from the words, "so far as is

practicable", we say the offence is a strict

liability, or an absolute liability, offence.

We rely for that on what is said in the

SWAN HUNTER case and on what is said in the

AUSTIN-ROVER case and we say that another way of

stating that is to say that the elements of the
offence, without taking those words of exception

or qualification into account, are clear.

(Continued on page 169)

C2Tl8/2/DR	167	9/5/90
Chugg(2)

MR DWYER (continuing):  The offence is without taking those

words of exceptional qualification into accoun~

the failure to provide and maintain a safe working
environment, or a safe plant and systems of work.

My learned friend referred the Court to passages

from the judgment of Lord Griffiths in HUNT's case.

We say that HUNT's case does not support the test

which my learned friend appeared to seek to derive

from it based on the ease of a defendant discharging

the burden. EDWARDS's case had suggested a

narrow test. HUNT said that EDWARDS was right, so

far as it went, but that the question could not be

so confined. What was emphasized in HUNT's case

was that in construing the legislation to see whether,

as a matter of implication, the onus is cast on one

party or the other,the Court is entitled to consider
practical consequences, and I refer to the judgments

both of Lord Griffiths at page 374 and Lord Ackner at

384. The matter, we should say, is not just a matter

of the availability of experts. Facts are needed on
which experts can base opinions.

Now, there was an argument adopted by my learned friend that there was an assumed, or there was to be

an assumed, conscious intention by the Victorian

legislature not to adopt section 40 from the English

Act of 1974. We would say that that argument should

not be accepted. Section 40 was not necessary in

England, section 40 was only put there out of an

abundance of caution but,in any event,the Victorian

legislation does not derive in any straightforward

way from the English legislation even though there

are similarities. The South Australian INDUSTRIAL

SAFETY HEALTH AND WELFARE ACT 1972 was the model for

the Victorian 1981 Act and neither of those Acts

had an express provision dealing with the question

of onus, and we say the starting point for the Act

with which this Court is concerned was the Victorian

1981 Act and that one should not be surprised that

as the Victorian 1981 Act did not have a provision

expressly dealing with the.question of onus, that

the 1985 Act would not have such a provision.

Now, there are certain matters raised by my learned friend's submissions and repeated by him

in his argument to the Court, and I desire to deal

with them as quickly as I can. He says and repeated

that the words with which this Court is concerned

are "clear, plain and unambiguous". It is submitted

that on the question that is before the Court that

plainly just cannot be said. That is, if one recognizes

the question as being, "Where does section 21 cast the

burden of proof"in relation to the words"so far as is
practicable", the words of the statute simply are not

"clear, plain and unambiguous". The words of the

statute do not address the problem.

C2Tl9/1/JL	168	9/5/90
Chugg(2)

BRENNAN J: And being a criminal statute it must be strictly

construed.

MR DWYER: Well, with respect, WAUGH V KIPPEN has made it

very plain that the remedial purpose of Acts for

the protection of workers is a principle of greater

significance than that of strict construction of criminal statutes. That was precisely the point

in WAUGH V KIPPEN and that was said clearly by the Court

in that case and we say that that applies here, and

the particular passage in WAUGH V KIPPEN - - -

BRENNAN J:	You do not need to read it to us.
MR DWYER:	I was not going to read it, the passage is at
pages 164 and 165 in a judgment in which four members
of the Court combined. Now, what my learned friend's
argument seeks to do is really to say that where
nothing is expressed in the statute as to where the
onus lies and where the intention is to be ascertained
as a matter of implication,one should still not have
regard to the matters of policy that must be the only
way of deciding the question.

(Continued on page 170)

C2Tl9/2/JL	169	9/5/90
Chugg(2)

MR DWYER (continuing): What my learned friend's submission

really asks the Court to do is to sweep those matters
under the carpet. It must follow absolutely that if

one is looking at the question as a matter of

implication that somethin~ hoyond the words must be

referred to and what must u~ referred to are enc

matters that were identified in HUNT's case, the
policy of the legislation, how the matter would

work in practice, and it is submitted that factors

of that kind must be taken into account either overtly

or covertly by a court and we say that, rather than

have the matter go off on inarticulate premises,

the matter should be clearly identified, acknowledged

and dealt with in deciding the matter.

My learned friend seeks to rely on the existence

of provisions in the Act expressly dealing with matters

of onus and proof which he identified and he says that

the existence of those express provisions means that

one should not draw the implication that we say should

be derived from section 21 but it is plain that the

presence of those express provisions does not assist

in deciding what is the implication in section 21 and

there is, I think, a dramatic example of that in the

decision of Mr Justice Sholl in EVERARD V OPPERMAN,

(1958) VR 389, where in the one section, section 32

of the illICR CAR ACT 1951, there was as to one element

of what was dealt with in the section an express

provision as to the burden of proof of that element

but there were other elements in the section as to

which it had to be a matter of implication as to

where the burden of proof lay and His Honour held

in that case that - other matters in the section,

the question of the onus as to whether the defendant

held a special permit was - the onus was on the defendant

as a matter of implication and one sees similar

reasoning in the decision in the South Australian

Full Court in STATELINER PTY LTD V LEGAL AND GENERAL

ASSURANCE, (1981) 29 SASR 16. The reasoning is in

the passage of Chief Justice King at page 41.

The respondent says that the words of section 21

contemplate a certain working environment qualified
by the words "so far as is practicable" which the
respondent calls "a defined working environment".

Our submission is that what the Act and the section

have in mind is a safe working environment and

it must be pointed out that no state of affairs

fulfills the description "safe, so far as is

practicable" until the end of an inquiry and we

say that, if one concentrates on the question of

failure to provide a safe working environment, the

words as to practicability provide an excuse for

failing to provide it or a protection, as it was

called in the English cases, for a failure to provide

it. The respondent says that the words are not a

C2T20/l/SH	170	9/5/90
Chugg(2)

qualification but no argument or reasons are given

for that and the submission is that they are plainly

words of qualification on a duty which would otherwise

be absolute.

The respondent says that section 21 is simply

the legislative enactment of the common law duty of
care but it is submitted that that is not so. No

injury is required for a breach of section 21; no

damage need have been suffered by any worker before

there is a breach of section 21 and that is at

once a clear contrast between what is required for

the common law duty of care and for an action based

on the common law duty of care and what is required

under this legislation.

(Continued on page 172)

C2T20/2/SH	171	9/5/90
Chugg(2)

MR DWYER (continuing):  The respondent argues, in paragraph

14 in particular, that what we have called the "well-settled approach"-or rather,he says that

tu~ns on the wording of the particular legislation

in each case, but properly considered, the

respondent's argument there supports our case.

The well-settled approach is not based on any

particular form of words. That is plain from the
fact that the provisions are cast in a number of

different ways, as the respondent points out. The

point is that legislation, cast in that variety of

forms, with similar purposes and similar words used,

that is,similar in substance, has all been interpreted

in the same way, as we have pointed out. The

respondent in 14(F) deals with what we had said

about an inspector's powers of investigation. There

is nothing in the written submissions but my friend

did concede the existence of the priviledge against

self-incrimination and, we say that contrary to

what is said in the submissions, we cannot obtain production of documents by a subpoena in the face of that priviledge and we would refer to the decision

of this Court in CONTROLLED CONSULTANTS PTY LIMITED

V THE COMMISSIONER FOR CORPORATE AFFAIRS, (1984-1985)
156 CLR 385 at 391, where the Court referred to

earlier decisions to a similar effect, and we would refer

also to the Federal Court decision1 TRADE PRACTICES

COMMISSIONER V TNT MANAGEMENT PTY LIMITED, (1984)

FLR 172, and the Federal Court decision was concerned

with the production on subpoena duces tecum of

documents in pro~eedings to recover a pecuniary

penalty and the court said it could not be done and

we say it cannot be done in criminal proceedings

either.

We say that both the making of admissions or the making of statements to an inspector and the production of documents to an inspector or by

compulsion to a court, is subject to the privilege

against incrimination which is preserved by section 48.

My learned junior says that I may have said Federal

Reports not Federal Court Reports, in giving the

citation to the TRADE PRACTICZS COMMISSIONER V TNT MANAGEMENT. It is Federal Court Reports at

page 172. So we say that,properly considered, the

existence of that priviledge destroys much of what

is said by the respondent in paragraph 14(F), but
rather more extensively the respondent answers our

argument based on difficulties facing a prosecutor by referring to industrial cases and concepts such as floating a case and postulating a cost. A

prosecutor cannot conduct a prosecution in that way.

A plaintiff may be able to and we have, for the

assistance of the Court, obtained this morning the

unreported decision of the Court of Appeal in

New South Wales in MOUSTAKIS V PUBLIC TRANSPORT

C2T21/l/CM	172
Chugg(2)

COMMISSION, a decision of the Court of Appeal of

1 May 1987 which, in the judgment of

Justice of Appeal Priestley~t pages 7 and 8, deals

with the comfortable position that a plaintiff
may be in, as to those matters, but a prosecutor,
not only carries the onus of proving,eve~y element
of the offence beyond reasonable doubt, but his

duties as a prosecutor do not permit him to float

a case. A prosecutor, we say, cannot properly

cause a person to be arrested or presented on an

indictment if he knows that he is not in a position

to prove each of the essential elements of his

case and we rely for that on two matters, one is

a policy document which we have had copied for

the Court. The prosecution policy of the Commonwealth

guidelines for the making of decisions in a

prosecution process - - -

BRENNAN J:  This is really fairly remote, Mr Dwyer, is it not?

(Continued on page 174)

C2T21/2/CM	173	9/5/90
Chugg(2)

MR DWYER:  I would acknowledge this: my learned friend makes

a lot of assertions about what a prosecutor can do

for which he does not give any authority and we

say that they are simply wrong, and perhaps it is

not necessary to go beyond that, but a prosecutor

could not conduct a prosecution in the way that

my learned friend says he could.

The final point that I wish to turn to is this:

my learned friend says that the appropriate analogy

for a prosecution is a negligence action in which

he says the onus is always on the plaintiff. There

are plenty of examples of negligence actions in

which it is said that the onus is not and there is
one that bears particularly on this matter and

that is COOK V COOK, (1986) 162 CLR 376, at 387.

That was concerned with a qualified standard of care

in relation to a learner driver and it said in that

case that a qualification on the standard of care

is to be proved by the party asserting it, that is,

if the defendant says that there was a qualified

standard, it is for the defendant to carry the onus

on that. Now we say that the qualification

so far as is practicable in truth goes to something

that is analogous to the standard of care. It is

a question of the standard of safety that is

required to be achieved and we say that COOK's case,
dealing with civil proceedings, provides a further

argument in support of the way in which we say the

section should be approached. There are other

instances of the onus being cast on the defendant;

it is, perhaps, not necessary to go to them.

What we say is this: the better analogy is

not a common law action in the industrial jurisdiction

for injuries. The better analogy is what has been

done under equivalent legislation, under legislation

in very similar terms, that is, section 29 of the

FACTORIES ACT. That is a much stronger, closer and

better analogy, we say, and that is one of the

reasons why we say the approach adopted so clearly

under that section and its equivalents should be

adopted here. If the Court pleases.

BRENNAN J:  Thank you, Mr Dwyer. Mr Gillard, do you have

anything in reply in relation to your appeal.

MR GILLARD:  Just two points, Your Honours. My friend gave

Your Honours a list of cases where the situation

was a repair situation and not an operating

situation. I do not think that I ever suggested that the duty did not arise there. Indeed, that

is the very point we make, that you do look at it

on this particular day, in this repair mode, to

test whether or not the part of the plant was

C2T22/l/LW	174	9/5/90
Chugg(2)

dangerous. I do not think I ever suggested that

it could not apply in those circumstances.

The other thing my friend said was that there were two cases in the House of Lords which show

that you have got to look at it in its normal

operating mode. If I might say so with respect

to him, it is a little bit misleading to take pieces out of either of those judgments without considering the facts in the argument and, quite frankly,

if one looks at the first one of MIDLAND AND

LOW MOOR IRON AND STEEL CO. LTD V CROSS, (1965)

AC 343, there was an argument put there - there were
a couple of rollers and there was a space between
the rollers and somebody said, "Well, when they

were normally rolling, if you put your hand between

the rollers you would not get caught", but on this

occasion he was feeding through a piece of steel

and he managed to get his hand caught. Somebody

diverted his attention and the next thing you know

he gets his hand caught.

Now the argument was put in that case -

and it got all the way to the House of Lords - that

really, if you looked at this machine, it was not

dangerous because there was a gap and you could

put your hand through it, and so that was the

argument put. Of course, what the House of Lords

were saying is of course you have to look at the

facts that applied in those circumstances. What

was it being used for?

{Continued on page 176)

C2T22/2/LW	175	9/5/90
Chugg(2)

MR GILLARD (continuing):  He was feeding a piece of steel

through these rollers and if you looked at those

facts, as are operating on that day, then clearly

it was dangerous. Now, it is a little bit

misleading to take a part of the speech and say,

"Well, it only applies when it's operating in its normal mode". That is the reason why it was said

on that occasion, you have got to look at it when

it was operating in its normal mode on that day

with this piece of steel going through it.

Despite that, a somewhat similar argument was put in

JOHNSON V CALLOW. They said, "Well. look, this

machine, when you looked at it, it had.a nipping

point but really it wasn't all that dangerous

but the particular activity that the worker was

doing on this particular day did make it dangerous.

He was using a squeegee to lubricate the rollers

and putting his hand near the nip". Now, again, the

court said, "Well, you just can't argue that you

look at this machine in isolation and not working"

and that is when both these statements were made in

both those cases. So, I respectfully submit to the

Court that one should look very closely at the

facts and the argument before accepting baldly

what the House of Lords has said.	May it please
the Court.

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

its decision in these two matters and we will now

proceed to hear the next. Yes, Mr Ward.

MR WARD:	If Your Honours please. The appellant has now
prepared two sets of submissions.  The first set,
on 26 April and the second set has only come to
the Court this morning.  The second set of submissions
have been an endeavour to enlarge on some of the
matters in the first set and then to reduce the time to be taken by the Court in the determination of this matter. Your Honours, as far as the facts are
concerned, the plaintiff respondent was working at
a milk bottle crater, as appears on our submissions
on page 2 of the initial submissions at paragraph 1.2, and there are photographs before the Court of the
particular machine and they appear and are referred
to on the same page at 1.6 of the submissions and being
photographs appearing in the appeal book at pages 54, 55 and 56.

Your Honours will see on page 56 it shows

the gripping arms hanging down from what appears

to be a table and it shows the crates - some empty

and some filled. The gripping arms are referred

to there, take hold of the milk bottles and hold

them as appears on page 55, and then the arms move

out across the crates and lower the bottles into

C2T23/l/JH	176	9/5/90
Chugg(2)

the crate. His Honour's judgment - the trial judge -

we set that out on page 1.7, at about point 3 on the

page, where we say:

" ..... where they -

the bottles -

are held for a few seconds -

"In the bottling operation -

if I may go to the top of it -

empty crates are conveyed, three at a time,
to a position adjacent to the area where the

full bottles of milk are collected and placed

in rows. The gripper heads of the machine

grip the tops of the bottles which are then

elevated and carried to a position above three

plastic crates, where they are held for a

few seconds to allow them to stabilize and

then lowered into the crates.

Further down on that same page of our submissions,

at 1.8, we refer to the evidence of Mr Thompson:

"a leading hand in charge of two plants,

stated that at the time of the plaintiff's

accident he was sweeping up glass from

bottles which had been smashed on the bottle

filling machine which was two to three feet

from the No 2 -

machine. I think in one of the sets of my learned

friend's submissions he seems to suggest that the

evidence is capable of the construction that the

bottles had fallen from the grippers themselves.

There is no evidence to support that in our

respectful submission. So, the actual broken glass

which is referred to does not come from the dropping

from the grippers. (Continued on page 178)

C2T23/l/DR	177	9/5/90
Chugg(2)

MR WARD(continuing): His Honour's findings appear in our

submissions on page 5, paragraph 1.10. His

Honour held that:

In my view the bottle being carried at the relevant time was a thing separate from part of the machine, that is, the gripper head

which was holding it and consequently no

part of the plaintiff's body came into

contact with part of the machine.

In the next paragraph -

In the absence of regulations made pursuant
to s.31(2) of the Act which could possibly
provide a claim for breach of statutory duty,
the plaintiff fails in his claim under

s.27(1) of the Act.

Then the submission deals with the approach of the

Court of Appeal and the principal majority judgment

was that of Justice of Appeal Clarke and it is

set out on page 6, where His Honour says:

"In the present case the gripper heads created

no danger whilst stationary but once the machine

was operated the action of the heads in grasping

the bottles and lowering them into the crate

had the effect of creating a closing gap

between the bottles and the crate, or any

broken glass left in the crate. If it is

proper to regard that closing gap as a

dangerous situation then as a matter of logic

that situation was created by the action of the gripper heads. In the normal operation of the machine they lifted the bottles and

lowered them into the crate and, accordingly,
should be regarded as the cause of the

dangerous situation.

His Honour dealt with the authorities and on

page 7 we deal with the authorities that His Honour

referred to there and that is MUMMERY V IRVINGS.

TOOHEY J: Just before you get to the authorities, Mr Ward,

in terms of section 27, what was identified as the

dangerous part of the machinery? Or, perhaps,

two questions: what was identified as the machinery?

and, what was identified as the dangerous part?

MR WARD:	The machinery is the bottle crating machine. I
think there was, at the commencement of the case,
a change of position by the plaintiff and - an
amendment was sought to the statement of claim, it
is referred to - I think His Honour refers to that in
his judgment at page 62, where it was said - at
about line 20:

C2T24/l/DR	178/179	9/5/90
Chugg(2)

his right hand was crushed by a bottle in

the descending gripper head of the machine.

Then there is reference to Harrington:

the defendant then submitted

that it did not raise an issue under section 27(1)

and then His Honour refers to that, that:

consideration of the defendant's submission

was deferred until the close of all the

evidence.

I was under the impression that what was being

relied upon by the plaintiff was the gripper head.

DEANE J: Well, the decision against you is that the gripper

heads were the dangerous part of the machine.

MR WARD:	Yes, Your Honour, and I think that is, too, how I construed the matter that was before His Honour
the trial judge - that he was looking at the
gripper head as being the dangerous part. My
learned junior may be able to look to the passage
that might assist them where that is more specifically
spelt out, Your Honour.  The approach taken by the
majority judgment was that MUMMERY V IRVINGS did not restrict the Court from finding, in this particular case, that the heads were dangerous and that the breach was committed.

It was on that approach, then, that the Court

came to the conclusion that where the bottom of
the bottles came in contact with the bottom of the

crate and the bottom of the crate contained glass

which the plaintiff placed his hand into to

remove the broken glass before the gripper descended

and the evidence was that the normal practice in

this situation was to switch the machine off,

remove the glass, then switch the machine on, then

the gripper arm would come over, hover above the

crate to stabilize the bottles and then lower them

into the crate.

(Continued on page 181)

C2T24/2/DR	180	9/5/90
Chugg(2)

MR WARD (continuing):  So, the submission,really, made on

behalf of the plaintiff, as I understand it,

is that that gap that was created between the bottom

of the bottle and the bottom of the crate was the

dangerous gap; that the machine - the gripper

had brought the bottle over and lowered it down

and, therefore, that the gripp~r arm was dangerous .

Now, I think that was certainly the approach taken

by the court in the majority judgment.

TOOHEY J:  But how could you fence the gripper arm?

MR WARD: Well, Your Honour, our first submission is that the

gripper arm, itself, was not dangerous, that what was

dangerous was a gap that was brought about by materials

or objects in the machine and therefore it was not

necessary to fence it. But, my friend's argument

would have to involve - if you did put some fence just

to protect the gripper heads themselves, and that

is the toP, I think, which was · included, probably,- just

the top of the bottles where they are gripped in those

heads, then it would be completely ineffective, is one

of the arguments we advan~e in our submissions,

to prevent this injury occurring. So, if you could put

some fence around the gripper heads it would not, in

itself, be effective. So, the fence that my friend

would have to contend for, and he does in his submissions

contend, that the fence should go all the way down

and, presumably, cover the whole of the crate so that

you have a fence right around - - -

TOOHEY J:	You fence off the whole operation, in effect, so that there can be
no access to any material at the bottom of any of
the crates?
MR WARD:	Yes. And I suppose that one of the problems then

would be, Your Honour, then you probably might get

caught with the fence; if you decide to put your hand

in in a situation like that and the whole thing

descends to lower the bottles into the crate then you

could be caught with the fence that you have provided around the gripper heads.

DEANE J:  Was there ·any need for the operator to put his or her

hand in the area of danger while the machine was

operating?

MR WARD:  No, one of his duties was to move any broken glass

that was in these crates that came along, Your Honour.

DEANE J: And he was supposed to turn the machine off?

MR WARD:	Turn off the machine and - - -
DEANE J:	Was it necessary to realign the crates occasionally or -

one of the photos looks as if the -

C2T25/l/JL	181	8/5/90
Chugg(2)

MR WARD:  There is no evidence to suggest that as I recall,

Your Honour. This situation was one where - must

have been highly negligent on the part of the

employee because, one might understand an employee

deciding that he has got time to move the glass
without switching the machine off, and we have got

to allow for that situation, but he has got a

warning signal with the gripper arm swinging out

towards him and over the crate and hovering above

the crate and whilst that is going on he has still

his hand - he has got plenty of warning.	The
situation is at a stage where the bottles

are going to be lowered but he has not removed his

hand. Our submission here would be that if the

gripper heads were dangerous :- we submit they were not. -

that there v;ould only be the obligation to fence the gripper

head, and we develop that argument further on in the

submissions.

BRENNAN J: Butitisnecessary that one should identify the gripper

head as the dangerous part?

MR WARD:  Yes, with respect, Your Honour .. tn our submission,

it would be necessary, Your Honour, because the

section, and this was raised in the other

case- section 27 is referring to dangerous parts

and not to a dangerous machine and my friend,

Mr Gillard, drew attention to the fact that the

distinction has to be drawn between the two and

we develop this again in the second set of

submissions Your Honour.

BRENNAN J : But it is dangerous parts of the machinery in a

factory.

MR WARD:  Yes, Your Honour.

BRENNAN J: It is not dangerous parts of a machine, it is the

totality of the machinery in the factory. Any

dangerous part of that you have got to fence?

MR WARD:  Yes, Your Honour, but you do not look at - - -

BRENNAN J:  But here you have got crates coming along; you

have got every prospect of getting a hand jammed

if it goes in while the machinery is operating

and the only way to protect oneself from that is to

turn the machine off and the temptation, one would

think, to try to fetch out a piece of glass quickly

before the bottles come down again would be almost

irresistible.

C2T25/2/JL	182	8/5/90
Chugg(2)

MR WARD:	Well, Your Honour, going to the initial part of
Your Honour's statement, for an employer to know
what he has to fence, he has to be able to recognize the dangerous part that requires the fence,not look at the totality of the machine as to whether its operation generally is dangerous but particular parts or which part of it creates the danger because that is what he has to direct his attention to in order to determine what to fence.
DEANE J:	On your argument, does anything turn on it being the bottle and not the gripper head?
MR WARD:	Yes, Your Honour.
DEANE J:	What if it had been the gripper head itself which
forced his hand on to the glass?
MR WARD:	We would not have any answer to the situation then,
Your Honour.

DEANE J: Well, that is what I was wondering. It is not that

the injury was caused by the operation of the machine
that founds your argument. It is that it was something

held by the machine rather than the machine itself

which came into physical contact.

MR WARD:	Yes, Your Honour, that is so; the two objects in the
machine an~ if I may jump forward a little bit, we say that that situation is really covered by the
regulation powers which are directed to moving
objects or material in the machine.  There is power
to make regulations for fencing such and that they
would be covered specifically by that and that because
the two that are dealt with - two objects in the
machine - then it does not fall with1n section 27;
it falls within the area considered by section 31.

Your Honour, in case I did not make it clear, if

there would be no bottle in this machine	the gripper
head would never travel down far enough to have	caught his hand. It only comes down far enough
to lower the bottle into the crate so that there
would always be - if there is no bottle in the crate
and the gripper came across, there would always be
the distance between the height of the bottle from the
bottom of the crate.

GAUDRON J: Mr Ward, that is a conveyor belt under which the

crates are, is that - - - ?

MR WARD:	Yes, Your Honour.
GAUDRON J:	And it is an automatic conveyor belt?

C2T26/l/SH	183	9/5/90
Chugg(2)

MR WARD:	Yes. It comes along and then they become stationary
adjacent to the gripper arms which are further back.

GAUDRON J: Yes. Well, has it never been put that it is actually

the conveyor belt that should be fenced?

MR WARD:	No, that has never been submitted, Your Honour.
GAUDRON J:	That has never been the submission.
MR WARD:	No.
GAUDRON J:	Yet it is part of the machinery of the factory.

You see, it seems to me as clear as daylight really . that if you are removing glass from the crates you do 1t

further down the line and you fence the conveyor

belt which holds the crates into which the bottles

are being put; almost axiomatic really, I would have

thought.

MR WARD:	Well, Your Honour, this may be like many of these
factory accident cases where, after looking at the
total facts, it is obvious that there probably is - a different approach should be made, a different part
of the machinery should have been alleged to be dangerous and that applied in the case of SPARROW
where Sparrow had a tool to make an adjustment to
the - I think there was some process in the machine. He put his tool in the machine, alleged ~hat th~,
revolving drum was dangerous and then ev1dently w1t·1~re~ his co~mon .law count on t½e revolving drum and never
specified that any other part of the machine was
dangerous and his hand came in contact with another part of the machine which Their Honours said could
well - in their view, would have been dangerous so
if it had been specified, his hand would have come
in contact with that particular dangerous ~art
and therefore it was not fenced but that was not the
case that had to be met by the defendant and we submit
it is not the case that had to be met here, Your Honour.

Your Honour, I ~as ~ain~ to ~o to pa~e A of our

initial submissions, paragraph 2.12, which refers

to the judgment of the dissenting judge, Justice
of Appea] McHugh, as he then was, and state that

the question for consideration was whether an employer

commits a breach of duty imposed by section 27 of the

Act when he fails to guard a machine so as to prevent

injury to an employee who is injured by being crushed

between two objects which are held in the machine and

in relation to which it is operating.

C2T26/2/SH	184	9/5/90
Chugg(2)
MR WARD (continuing):	Then next. page:	His Honour held

that the ratio decidendi of MUMMERY is that the

machine must be guarded so as to prevent danger

from its parts but not from its general operation. That is

the emphasis that was added.	That is the submission I
was making earlier, Your Honour.	We are not guarding

against the general operation of the machine but our

obligation is to guard against the particular part

that is alleged to be dangerous.

BRENNAN J:  How does that fit with the case to which

Mr Gillard was referring in his reply of the

counter-rolling rollers through which you could

put your hand safely unless it was operating to roll

steel?

MR WARD:	Your Honour, that is in CROSS V MIDLAND.
BRENNAN J:	Yes.
MR WARD:	That was a case where there was an idle roller which

was only activated by the material being fed into it

and once the material was fed into it because of

another roller operation the movement going through

activated the idle roller and it was held in that

case that there was a juxtaposition of the idle roller

which was then activated and the materials. It

is not being suggested in our submission that you

disregard the part of the machinery whilst it is in

operation. We say you do regard - as you do in

that case, you regard that idle roller activated

and then you look at the contact between the bar being fed into the roller and the roller itself.

If you get a knit point between that part and the

material, then you have a dangerous part of the

machine which requires fencing.

DEANE J:  Well that case would be on all fours with the

position if the grip itself had hit the hand.

MR WARD:  Yes. If there had been some contact with the part

of the machine itself, Your Honour, with the hand,

we would not be here.

DEANE J:  Your point is it would have been different if there

had been two pieces of steel going in and his hand

had been caught between the two pieces of steel,

because then it would not have touched either of

the rollers?

(Continued on page 186)

C2T27/l/HS	185	9/5/90
Chugg(2)

MR WARD:  Yes, Your Honour, although we would say that if

you put two pieces of timber and that it would be

joined together on a belt and there is going to be

pressure applied to one piece of timber to push

it against the other in order, to say, to join it

then, there is a dangerous gap there between

those and which would have to be guarded by the -

one would think, there is a regulation would provide

for such a situation; a dangerous gap between two

pieces of - that are going to be moving together

in the machine. But there is no dangerous part of

the machine that causes the injury and we deal with
this further in our submissions; that there are four

principles - it has got to be a direct injury by

the part of the machine, not indirectness

would flow and we will deal with that in the next set

of submissions, if I may.

Your Honour, we deal then on paie 9, ,

Your Honour, with the obligation of the employer

and then we say at 3.2 that the question which arises

from the facts of the present case is whether the
fact that the bottles held by the gripper heads

could, as distinct from the heads themselves, cause

injury to an operator whose hand was caught between

a bottle and the bottom of the crate or broken glass
in the crate, gave rise to an obligation on the

employer to securely fence the bottles whilst they

were being held in the gripper heads.

On page 10, we refer to the approach taken by by Mr Justice McHugh. He refers to MUMMERY's case

and going on the other submissions we refer to the

specific passages which we seek to rely upon without

taking the time of the Court to read them but in

MUMMERY's case there are four judgments which were

referred to, being the judgments that are referred

to on this page; there is Lord Thankerton,

Lord MacMillan, Lord Simonds and Lord Uthwatt.

The passages were cited in the MUMMERY's case and

His Honour deals with those at that paragraph of

our submissions there.

(Continued on page 187)

c2T28/l/JH	186	9/5/90
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MR WARD (continuing):  And then at the top of page 11,

His Honour is going on to say that:

The ratio decidendi of MUMMERY, therefore,

is that the machine must be guarded so as to
prevent danger from its parts but not from

its general operation. Although the

actual decision in MUMMERY was that there is
ri:o obligation to fence a machine so as to

prevent it ejecting dangerous materials,

the principle of the decision is wider.

Now, Your Honour, on page 11, paragraph 4, we

then deal with our submission as

to the scope of section 27 of the Act. We

set out the portion of the section 27(1) and then

the next page,section 31(2), if I might take

Your Honours to that, which provides:

The regulations may, as respects any type

of machine in factories or any process in

which machines are used in factories, require

the fencing of materials or articles whilst

in motion in the machine and may regulate

the manner of such fencing.

And, Your Honour, that regulatory power was

referred to by both Mr Justice of Appeal Clarke

and was also referred to by Mr Justice McHugh

in his dissenting judgment and, in our submission,

it wo·,ld clearly - if there had to be a situation

cover~d here, a dangerous situation, then it fell

within that area - - -

BRENNAN J:  Does this mean that you do not have to fence a

blast furnace; which is quite standard?

MR WARD:	I think that might be under separate legislation.
I think section 39 of this Act might be the - that
is subsection (1).

(Continued on page 188)

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DAWSON J:  But really it is an argument which says the

part of the machine is not dangerous because

it does not touch you because the milk

bottle touches your hand, so that if you had a

machine which throws out things at you, so as

to hit you, that part of the machine that does

that is not dangerous although if the part

itself hits you it would be dangerous.

It is a very strange sort of argument.

MR WARD:	Well that is the effect of MUMMERY's case,
Your Honour.

D~WSON J: It is odd, is it not?

DEANE J:  It is not only the effect; it is what it said.

MR WARD:	Yes, Your Honour, that is what MUMMERY's case says and that is what NICHOLLS's case says, that you
are injured or the danger is created by
the object coming out, and that can be covered by the regulations, we say.

DAWSON J: Well you can equally say that the danger is caused,

in this case, by this part of the machine forcing

a milk bottle on your hand.

MR WARD:	The interpretation in MUMMERY was that there had
to be -
DAWSON J:	I have no doubt that that was, but it is fairly

scholastic sort of reasoning, is it not?

MR WARD:	Your Honour is not the first, probably, to be
critical of the principle in NICHOLLS's case
but whilst it has been the subject of some criticism
it has continued to be adopted and we rely on it, Your Honour.

DAWSON J:  No doubt, yes.

MR WARD:	On page 13, we then in 4.7 refer to the passage
in Hansard and, Your Honours, where the
Honourable J.J. Maloney, Minister for Labour and
Industry, on the second reading said,
"It is contemplated that the regulations will
lay down stringent rules which will avoid the possibility of injury to any person".

Your Honour, on going over to the next page,

I should draw attention to an error which is rather crucial in 4.8 where three lines from the end of the

paragraph the word "necessary" appears and it should

be "unnecessary". I must apologise for that.

C2T30/l/LW	188	9/5/90
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TOOHEY J: Where is that?

MR WARD: Three lines from the end of paragraph 4.8

where the word "necessary" appears, it should be

unnecessary. Your Honours, in the supplementary

submissions of today's date, at 1.0, we say

the reasoning in the majority judgment in the

Court of Appeal leads to the following principles

which are contrary to well-established principles and,

(a)an employer can be liable for a breach of section 27 whereby injuries are suffered by the workman although

he sustained his injury without having made contact

with any dangerous part of the machinery.Now, that

is the point we have been dealing with and this is

expanded on later on. (b) The employer's obligation to

fence, under section 27, is an obiigation to fence

against direct and indirect dangers caused by the

machinery part.

DEANE J:  Mr Ward, is there any application of MUMMERY's case

to a case such as this where the injury is not

caused by something flying from the machine but by

something held by the machine or forced into contact

by the machine?

MR WARD:  Your Honours, BULLOCK's case where the wire that was

being extruded in the machine and was tied on to a
roller and had been drawn through the machine

and it had a guard on the roller which was 1 obviously,

it must have been regarded as a dangerous .. part of the

machine, and the wire on this particular occasion

had a whipping action which took it over the top of the

guard and killed the operator near the machine. That

case was determined on the basis that it was material

in the machine which had caused the injury and was not

the dangerous part of the machine being the roller.

DEANE J: What court was that in? I am not asking you to take

us to it?

MR WARD:  No, no,Your Honour, I appreciate that. That was

BULLOCK V JOHN POWER (AGENCIES) LTD, (1956) 1 WLR 171.

DAWSON J: Is there anything which prevents you from saying

that the milk bottle, in this case, when it was

gripped by the gripper was, in fact, part of the

machine?

MR WARD: Well, Your Honour, we deal with that further in these

submissions.

DAWSON J: Is there any case that prevents you - well you deal

with the cases,do youY

MR WARD:  Yes, well I do not think I refer to any specific

case, but I will take Your Honours to those

C2T31/l/JL	189	9/5/90
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submissions. So, then (d) is that the obligation

of fence includes an obligation to fence against

danger created by juxtaposition of material to

material or two objects in the machine. Now, we

say those principles adopt the judgment of the

majority in the Court of Appeal. Those are the

principles that are extracted from it. Then we

deal with each of these. Paragraph 1 - the remainder

of paragraph 1 is dealing with that j principle

showing whether it has been established that the

principle is that there must be contact with the

part of the machine and we go through that in

paragraph 1 and all its subparagraphs. We refer to

the cases there where that principle has been

stated and the application of that principle in the

various cases.

Your Honour, paragraph 2, page 4 - I should say

that before we get to that, while we are still on paragraph 1, on page 2, 1.2 we refer to MUMMERY -

the passages we rely upon in MUMMERY V IRVINGS, we draw

attention to the fact that, about five or six lines
down in that paragraph, in the latter part of the

last-cited passage Their Honours dr.ew attention to the fact that the difference in the wording of the English

Act and the Victorian Act does not justify a different approach by the High Court and I think my friend makes

some point in his submissions suggesting that there

is a distinction to be drawn.

(Continued on page 191)

C2T31/2/JL	190	9/5/90
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MR WARD (continuing):  As I say, Your Honours, at

paragraph 2 on page 4, we then deal with the

principle that there must be direct contact with

the dangerous part of the machine and the case

is referred to there of - again, our starting

point is the NICHOLLS case and the adoption in the MUMMERY case

of that and then the -

DAWSON J:  Is not what happened here - or the situation which

occured here - a direct danger arising out of

the functional operation of the machine?

MR WARD:  It might be arising out of the functional

operation of it but we say that you have got to

go back to - it is a direct danger of that

particular part that is alleged to be - - -

DAWSON J:	Why is it only an indirect danger?
MR WARD:	Well, there is an object between the part and the

area where the injury occurs.

DAWSON J:  So "direct man danger" means danger of direct

contact?

MR WARD:	Yes.
DAWSON J:	Yes, I see.
MR WARD:	And, Your Honour, in the case of, where it has been

held that there has been danger in contact,

PIRELLI's case is, of course, distinguished on the

basis that that was a revolving drum and that the

material was so closely pressed against the

revolving drum that when the operator's hand came in

contact with the material that it was, in effect,

coming in contact with the drum and the drum itself

was dangerous.

In SPARROW's case - no, I am sorry, SPARROW

was not a case where liability was - there are two
other cases, though.	MIDLAND V CROSS has already

been referred to. That was a case of coming in

contact with the idle roller which was activated and

there is one other case, JOHNSON V CALLOW, that was

the third case.

TOOHEY J:  Mr Ward, in the case of machinery which, on your

argumen½ is not dangerous in the sense that to come

in contact with it causes no harm but may be a

source of harm because it can throw out broken glass

or pieces of timber or metal, does the

FACTORIES SHOPS AND INDUSTRIES ACT deal with that

situation by some form of prohabition?

C2T32/l/JH	191	9/5/90
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MR WARD:  No, Your Honour, we would say that that is a

situation which should be covered by the regulations.

TOOHEY J:  Well, when you say "should be" - - -

MR WARD:  There has been no regulation. I do not think

any regulation has passed under that regulatory

power, Your Honour.

TOOHEY J:  Just to be clear, are you saying that there is

nothing in the FACTORIES SHOPS AND INDUSTRIES ACT

or the regulations made under that Act which

would require an employer to protect employees

against the sort of situation that I have indicated?

MR WARD:  That is so, Your Honour, yes. Your Honour, we

say this is a matter for those administering
the Act and for reasons best known to them, it has

not been done.

TOOHEY J:  One reason may be because section 27 was thought

to cover that sort of situation.

MR WARD:  Your Honour, if that is said, then section 27

came in - the Act was introduced in 1962 long

after MUMMERY's case was decided and when MUMMERY

had already indicated clearly the interpretation to

be given to the section.

(Continued on page 193)

C2T32/2/JH	192	9/5/90
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MR WARD (continuing): And, as I said, it was stated bv the M . . h. . ,,. , , cl. I 1-- l

1n1ster at t ~ t1[1.1e o:c t-:-te ser::o~c, rea Jng t•V\t t 1ose n::<;l1-.atory

powers would pick up almost everything.

DEANE J:	Of course, one thing that might be said against your
argument is that things flying from a machine may not
be appropriate to be guarded against by fencing and it
is completely different, though, when something, as it were, becomes an extension of the machine or is integrated
into the machine itself where you are in an area where
fencing is appropriate.
MR WARD:	Your Honour, we would say that that case we have already
referred to, BULLOCK's case, it was clearly attached to
the machine.

DEANE J: Yes. Well, it sounds as if BULLOCK's case would provide

support for what you say.

MR WARD:	Yes.
DAWSON J:	But there was the other case where the objects were, as I understood you, held by centrifugal force against the walls of the drum and the workman put his hand into
the drum.  Did I understand that incorrectly?
MR WARD:	No, Your Honour, in what - WEARING V PIRELLI - - -
DAWSON J:	And the objects were held to be part of the machinery?
MR WARD:	Yes.  There was a very thin rubber casing going around
the drum and then there was a beading to be put around it to hold that rubber casing against the drum and the
hand came in contact with this thin material that was on the drum and it was sought to be argued by the
employer that, in that case, really the contact was
with the material and not with the drum and it was
held that the material, in that circumstance, was
an irrelevance and there ha been, for all intents
and purposes, contact with the drum.

DAWSON J:	By being fastened in that way, it hecame oart of the
drum you mean?
MR WARD:	Yes, by being fastened, being - well, in those
particular facts, Your Honour, that was the way it was dealt with.

Your Honours, I think I was at the bottom of page

4 and I said that in paragraph 2 he was deqlins with

the second submission, the obligation to fence against
indirect dangers and then we take Your Honours to those
passages referred to in NICHOLLS's case, adopted in

MUMMERY's case and then CALLOW V JOHNSON.

BRENNAN J:  How do you distinguish WEARING V PIRELLI?

C2T33/l/SH	193	9/5/90
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MR WARD:	On the basis that it is on its own specific facts;
that it is - the material is a thin material that is treated as the drum itself and it is irrelevant
because it is the particular nature of it.
BRENNAN J:	But, may you not, by analogy with WEARING V PIRELLI,

say that "machinery" extends to that upon which it

operates; that is, that upon which the machinery
operates when the material on which it is operating

becomes, itself, part of the moving equipment which

the machinery puts in motion?

MR WARD:	Well, as I say, that argument has been advanced before,
of course. It was endeavoured to be advanced - or, was advanced in BULLOCK's case as I have referred to
and held not to be so and, in the instant case, there
has not been any suggestion in any court below that
that approach was the approach to be taken in this
case, Your Honour; that the object is an object that is held in the machine. It is not something that is wound eround the particular dangerous pait that is revolving and we have got, in that case of
PIRELLI, a distinction in so far as the part of the
machine, the drum itself, it is dangerous. The drum
itself is dangerous.  We say the gripper head is not.

(Continued on page 195)

C2T33/2/SH	194	9/5/90
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BRENNAN J:  Yes, the drum was dangerous and its diameter was

expanded, I suppose you can say.

MR WARD:  Yes. Now, I think I was dealing with - if I could

take Your Honours to the paragraph commencing with 3.0.

That is dealing with the l.O(c), that there is not

an obligation to fence the machine as a whole and

again we refer to the passage we rely upon for the

principle. Then paragraph 4 deals with the

principle as regards the moving materials and that

this is not the subject of the section 27, as

distinct from the regulatory powers.

Your Honours, at page 5 we come to the contention

of the plaintiff at the trial that the bottle was part of the machine which has been the subject of

comment already here - I am sorry, page 6, paragraph 5,

as to the contention of the plaintiff at the trial

that the bottle was part of the machine and 5. 1,

the bottle cannot be regarded as an extension of

the dangerous part. Justice Slattery so found.

No challenge was made to this finding in the appeal

to the Supreme Court of Appeal. President Kirby

also states that it cannot be part of the machine

and we have given the reference to the page there

where that appears, and then we make the point that

Justice of Appeal Clarke does not suggest it

is. Then we refer there to BULLOCK' s case,

which I have already referred to, and the

judgments we are relying upon there are on page 7,

paragraph 5.4. Then paragraph 5.5 deals with

EAVES's case where they are commenting on BULLOCK's

case and says - forbids the Court to hold that

"the danger created by the sharppess of the bolts

themselves with which this block is normally

armed can constitute it dangerous machinery

within section 14".

Your Honours, at page 8 of our submissions we

then deal with the significance of the application

of the four established principles that we referred

to, that is the contact, direct as distinct from

indirect, to fence the machine as a whole, and

no obligation to fence moving objects in the machine,

and paragraph 7.0 on page 8 says the four principles

enable the workman to be given protection against

injuries from foreseeable dangers without placing

any unnecessary additional fencing of the machine
or objects in the machine which would unnecessarily

hamper the manufacturing process and thereby

unnecessarily increase the expense of manufacture.

Then paragraph 8, the absolute liability

created in section 27(2) operates within the said

four principles. This enables the employer to

know the ambit of subsection (1) in respect of

which he has an absolute liability and also gives

the worker the benefit of such absolute liability.

C2T34/l/HS	195	9/5/90
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Your Honour, all the problems that might arise

out of this case, we say, could be overcome from
the working point of view by the regulations being
passed and for reasons, we submit, not as regards
the interpretation of section 27 because
we had had the decision in MUMMERY's case there
as a guide to the interpretation that had been

given to it, and for that reason the i~iury ~a~ really

suffered because of the objeLcs or materials

within the machine coming together and not the

dangerous part of the machine being involved.

Those are our submissions, if Your Honours please.

(Continued on page 197)

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DEANE J:  Mr Ward, there is no relevant definition of I machineryn anywhere or of 11part 11 ?

MR WARD:	No, Your Honour.
TOOHEY J:	I think that must be right, Mr Ward, because the
judgments of the Court of Appeal seem to proceed
on that basis.

MR WARD:  Yes, Your Honour. Unless Your Honours have any

specific questions, those are our submissions.

BRENNAN J:	Thank you, Mr Ward.	Mr Gross.
MR GROSS:	May it please Your Honours.	Your Honours the

description of the machine is at the bottom of

page 63 and it is plain that the dangerous part

alleged was the "gripper head". That appears from

Mr Justice Clarke's judgment at 96, line 4, and

President Kirby, Rage 82, line 10 and following.

Your Honours, may I raise one matter? Your Honour

Justice Gaudron raised the question of why the

dangerous parts were not differently defined so

as to incorporate, as it were, the stationary

conveyor on which the crate arrived and that,

Your Honour, does appear as being a sensible

solution, but unfortunately it was not adopted at

trial. Your Honour,we would point out, particularly

in the light of the fact, there was no other expert

evidence as well, that the plaintiff had an

entirely different team at trial, but the case that

was made there was essentially identified in the

judgment of Mr Justice Slattery, Your Honours, which

is at page 70, lines 8 to 27, and there it is

plain that-it was contended in the statement of

claim, page 70, line 15, that:

the gripper heads of the machine were

dangerous parts within the section.

And that was later expended in argument before

Mr Justice Slattery to contend that the bottle

was: 

integrated -

with the gripper head so -

as to attract the provisions of section 27(1)

of the Act.

That is at page 70, line 27. Now, Your Honours as it

was in the Court of Appeal, there was somewhat of

a contest as to what case the appellant could rely

upon on appeal and Justice Clarke dealt with that

matter at pages 98 and 99 and by not much more

than a narrow margin we survived that particular

attack and the reasons given are at page 98, line 21

through to the bottom of page 99, so that it was

not open to us to present

C2T35/l/CM	197
Chugg(2)

a wider case on appeal, a case that had not

been particularized or pleaded prior to that time.

But the location of the stationary conveyor

where the crate is might, in a different situation,

appear as coming within the section, but we concede

we are stuck with the case that was run down below.

Your Honours, can I deal with the questions which

are raised within the second lot of written

submissions in sequence. Three questions we

propose there for analysis:  One is whether contact

is required to make the part dangerous; second,

whether section 27 in this context did not apply

because there was a general activity of the machine
rather than the dangerous part, a view which

appeared to Justice McHugh and thirdly, that if you

are going to fence under section 27, you only have

to fence the gripper heads and not the machine,

bottles or crate. Your Honours have the written

submissions which in their second edition do

cover these problems, but can I just highlight

what we would say are the answers in these three

areas. On the question of dangerousness of the

gripper head we would say that dangerousness is

properly defined by this Court in BUCKLEY's case

which the Court of Appeal majority judgments accept

as being appropriate.

(Continued on page 199)

C2T35/2/CM	198
Chugg(2)

MR GROSS (continuing):  The test of dangerousness depends

on what is a reasonably foreseeable range of

behaviour of both the machine and the worker,

particularly where their functions may, in
various sets of circumstances, integrate at the

point of operation of the machine. Applying

that criterion, it is necessary, we would suggest,

not only to consider as the authorities say
all foreseeable combinations of factors creating
the risk but also all foreseeable outcomes.

Your Honours, that involves two considerations: foreseeability of injury and no problem seems arise,

we would suggest, in this case. The second aspect

is the mechanism or instrument of injury and that is

the issue that has divided the judges in the courts

below.

There are a number of subsidiary questions that

we asked, Your Honours, and the first of these is

whether there is a need for the dangerous part itself

to make contact with the worker. The written

submissions deal with that in some detail but can we
say this: the English cases in the context of
different legislation where there is express

reference to the concept of contact have left,

we would concede, gaps which in retrospect are

difficult to justify as a matter of logic or

commonsense but it would not assist Your Honours

for us to reargue some of the English cases.

We are content however, Your Honours, with the

fact that directness of contact is not required in

the later English cases. WEARING V PIRELLI LTD,

(1977) 1 WLR 49, is a decision where the House of

Lords found the lack of direct contact irrelevant. Without taking Your Honours to that judgment in detail, the features of that case, we would suggest, are these: it was held that the dangerous part of the machinery - that is, the drum - caused the injury despite the absense of direct contact between the

worker's hand and the slowly revolving drum.

In WEARING the injury causing potential of the
dangerous part depended upon the force being imparted
through the material to the hand. Your Honours,

minds might differ as to whether that is direct or

indirect causation. We would suggest that is not a

debate which it is particularly profitable to pursue.

In WEARING's case the House of Lords said that

the machine part - that is, the revolving drum -

was dangerous and described the material as being,

in the circumstances, an irrelevance. I think in

other contexts it has been described as being

harmless.

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But, in our submission, it is not necessary for our argument to characterize the work piece

as being harmless or irrelevant. The better

approach, we would suggest, is to say this, that

where the dangerous nip is created only by

juxtaposition of material and machinery, it is

sufficient under section 27 that the machine part

which achieves that situation can be considered

dangerous. In such circumstances, Your Honour,

it is the design of the machinery itself which

creates the danger,even where it is working

normally with material which itself does not

possess some intrinsic dangerous quality.

In short, the label dangerous is correctly

transposed to the part because of what it achieves.

DEANE J:  Does that really face up to the question? I mean,

assume for the sake of your argument that a part

of a machine which forces something on to something

else is dangerous in its operation. The query is

whether that is something that is covered by

fencing provisions which require that the part

itself be fenced and where the point of danger is

beyond the reach of the part itself, assuming that

it is only the hand that one is concerned with.

MR GROSS:  Yes, Your Honour, can I deal with the matter of

whether or not it matters if you take out the
work piece the dangerous part can reach the hand.

(Continued on page 201)

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MR GROSS (continuing):  Your Honour, assume we have a

punch press, which is a very cormnon piece of

machinery,and the worker is inserting a workpiece

into the press and he has his fingers crushed by

the descending dye which comes down prematurely.

The dangerous quality of that dye does not depend

on whether his hands are on top of the piece or

underneath when the dye descends. If the fingers

are underneath, there is no direct contact between
the dye and the worker. If on top, there is
direct contact but, in both cases, it is the force
transmitted directly by the dye through the medium,

in the latter case, of the workpiece which injures

him and one has not only, as it were, direct cause,

one has physical movement, speed and force defined
by the dangerous part itself.

It seems unnecessary in such circumstances

to ask whether the dye is thicker than the fingers
or the hand or whatever else might get into that

space. The dangerous quality would be the same in

all circumstances and ought not depend on fine

comparisons of the dimensions of workpieces and what

usually are varying sizes and shapes and

conformations of the worker's body or hands at the
time and, of course, we are dealing with safety

matters where fine distinctions ought be avoided

where poissible.

Your Honours, I think I have said enough

concerning the contact point but can I then deal

with the other part of Your Honour's question which

really looks at whether there is a legitimate

distinction to be drawn between the dangerous part,

which is dangerous in motion, that is the gripper

head)and the material, that is the bottle, which

is dangerous by reason of being worked in

the machine which we would suggest, Your Honours,
that there is no legitimate distinction, at least
in the present case. The gripper head is holding

the bottle throughout the entire relevant stage of

the process occurring at all times within the

confines of the machine.

(Continued on page 122)

C2T37/l/JH	201	9/5/90
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MR GROSS (continuing): Your Honours, it is not necessary to say

that the bottle is integrated with the gripper head

because in a physical sense, glass does not integrate;

that is, become one with the metal of the gripper head.

Functionally, of course, that may occur but even in

such circumstances, if one calls it "integration" in

terms of "function", the unitary result one has is one in which the gripper head creates the relevant dangerous quality.

DEANE J:	But what I was trying to direct you to is must we
not come back to the words of section 27(1)?
MR GROSS:	Yes.

DEANE J: Well, now, the obvious argument, I would have thought,

favouring you would have been that the part of the

machinery is dangerous becaµse of the way it operates

and what it can do and your next step would be the

obligation to fence must, if it is to be sensible,

mean fence the area of danger.

MR GROSS:	Yes.
DEANE J:	But the problem is that that seems to be squarely
denied by MUMMERY's case, which means we have to go back in the light of MUMMERY's case and see what
it is, if you be right, that requires you to fence
beyond the possible positioning of the dangerous
part itself.
MR GROSS:	Yes.

DEANE J: Well, now there, I think, you have to face up to a

problem of construction; that is all I was trying to

direct you to.

MR GROSS:  Yes. Your Honour, before I move to MUMMERY - and

I am moving next to MUMMERY - might I just complete

my submission on this by saying that the injury-causing

potential of the gripper head and the bottle in

combination renders the gripper head dangerous under

the section.	The combination is one of the
circumstances one foresees.	Where one has that

danger in combination; that is, the marriage between

the gripper head and the bottle, the section properly

applies on one of two bases; either there is both a

dangerous part and dangerous material - and you only
need one of those to create the breach of the section
or to make the section apply, or secondly, if you

apply foresight beforehand to the expected and

normal use of the gripper head, the gripper head is

a dangerous part creating future risks for the worker

in various circumstances.

Now, Your Honours, can I deal with MUMMERY V

IRVINGS?

C2T38/l/SH	202	9/5/90
Chugg(2)

MR GROSS (continuing):  The decision in MUMMERY V IRVINGS was

at a time when the purpose of construrtion of

statutes was not, we would suggest, in the

ascendancy. Second, it was at a stage when the

House of Lords used to be bound by its own decisions

for practical purposes and this Court placed

greater reliance upon House of Lords decisions.

BRENNAN J:  What is the relevance of those submissions to the

judgment and its standing - in MUMMERY V IRVINGS.

MR GROSS:  Your Honours, it only suggests the appropriateness

of reviewing the correctness of MUMMERY V IRVINGS

if Your Honours have to come to that point. We

would prefer to distinguish MUMMERY V IRVINGS in

a number of ways which we will come to.

BRENNAN J: Let it be quite clear that at the moment the

Court is not so constituted as to review MUMMERY V

IRVINGS.

MR GROSS:  I am sorry, Your Honours, perhaps I put that too

strongly. We are content that MUMMERY V IRVINGS

be distinguished and is readily to be distinguished

by reference to what it says.

BRENNAN J:	I see.
MR GROSS:	Your Honours, MUMMERY V IRVINGS was not a master and servant case. It was an invit or :invitee case. The
person had come into the timber factory to buy some
timber. Second, it concerned a flying projectile
rather than an injury occurring to an operator
within the machine.  I think Your Honour Mr Justice Deane
mentioned the matter of doubt: when, in fact, you have got a projectile case, sometimes the fencing
is not going to prevent the projectile from flying
out because, where it comes out of the machine and thereby causes injury, may be in a different
location from where the dangerous part is which
produces the necessary direction. After that you only need a space in the machine for it to come out.

But, putting aside those considerations,

MUMMERY V IRVINGS, as Your Honours will see - could

I take Your Honours to MUMMERY V IRVINGS?

BRENNAN J: Well, perhaps 2.15 pm would be a better time,

Mr Gross. We will adjourn now until 2.15 pm.

AT 12.48 PM LUNCHEON ADJOURNMENT

C2T39/l/DR	203	9/5/90
Chugg(2)

UPON RESUMING AT 2.19 PM:

BRENNAN J: Yes, Mr Gross?

MR GROSS:  May I take Your Honours to MUMMERY V IRVINGS PTY

LTD, (1956) 96 CLR 99. Your Honours, we submit

that this case has to be read in the light of particular features arising in the conduct of

the case. Your Honours will see in two parts of

the judgment, first of all at 103 point 8,and

secondly, at 106 point 2, that tre Court haf'l sOT"etl·,inv

to say about the poor quality of the evidence

and the conduct of the trial down below.	At
103 point 8, it was said that:

The substantial difficulties in the

case, however, arise both from the form
in which the action was brought, the paucity

of the evidence and the manner in which the

trial was conducted.

At 106 point 2, the Court says:

We agree that the evidence was deficient

in these respects and this would be

sufficient to deny the appellant a new trial.

Your Honours, the deficiencies were these: in the

conduct of the case, as Your Honours will see,

from 101 point 9, where paragraph 6 of the

statement of claim occurs, the plaintiff's case

essentially alleged that the circular saw was a

dangerous machine or, alternatively, part of the

factory where the:

saw was located was a dangerous part of the

factory -

in other words, the plaintiff's case did not

focus upon the question of whether there was a

dangerous part of the machinery. Second, there

were considerable gaps in the evidence directed

at what would have been the relevant question

and, Your Honours, the gaps were these: there is

no demonstration that there was a foreseeable

danger of the circular saw in its unfenced state.

C2T40/l/LW	204	9/5/90
Chugg(2)

MR GROSS (continuing):  Whether the circular saw was

fenced and, if so, to what extent was completely

left open by the evidence and whether proper

fencing of the dangerous part would stop the wood

from injuring the plaintiff was completely unknown.

The size of the wood and the dimensions and

characteristics of the circular saw were left

completely at large and, Your Honours, the Court

in the joint judgment at page 103 says something

on that subject-matter. If I could just very

quickly take Your Honours to that. At page 103

point 3:

The fact that he was so struck was established

by interrogatories and the other evidence

obtained in this fashion indicates that the

piece of wood came from the circular saw.

The appellant thinks that he was about

twelve or fourteen yar.ds from the saw

when he was struck but the respondent's

answer to an appropriate interrogatory

suggests that he was somewhat closer and

places the distance at approximately fifteen

feet. There is no evidence concerning the

size of the piece of wood which struck the

appellant nor is there any evidence
concerning the size or other characteristics
of the saw itself. In particular there is
no evidence whether the eSection of a piece
of wood of sufficient magnitude and with

sufficient violence to cause the

appellant's injuries was a usual

occurrence in the use of such a saw or,
indeed, whether it was an occurrence which

might reasonably have been foreseen.

Now, Your Honours, against this evidential void

if it appeared that the jury at first instance had

found against the plaintiff on the negligence issue

but found in favour of the plaintiff on the

statutory count, section 59, the judge at first

instance, however, directed after argument that

there be judgment for the defendant. The judge in

the court below at first instance gave reasons

which are set out at page 105 and what is said there

at the bottom of page 105 is:

(Continued on page 206)

C2T41/l/JH	205	9/5/90
Chugg(2)

MR GROSS (continuing):

there was not sufficient to enable them

to conclude that there was any portion of

machinery, any dangerous appliance, or any

dangerous part of the factory to which the
accident would be attributed within the

meaning of s. 59."

And he went on to say, at the top of page 106:

not possible here for a reasonable jury

to say on the balance of probabilities

that it has been established that no

guard at all was provided or maintained, or that none was provided or maintained to the

extent necessary under the section.

Now, this Court, in the light of such matters said

at 106 point 3:

We agree that the evidence was deficient

in these respects and this would be sufficient

to deny the appellant a new trial on this

issue but there is another reason why this

result should follow.

Now, before I go to the judgments in NICHOLLS's
case to which the Court refers, can I point out

that the Court at 105 point 3 to point 6 emphasizes

the importance of the distinction between a dangerous
machine and a machine which has dangerous parts and

the Court observed that that distinction had not been

adhered in the earlier history of the case but the
distinction is not without considerable significance.

I will not read that passage, Your Honours have that passage at 105. Now, Your Honours, at 106 point 2

through to 107 point 8 there are four judgments of

the Law Lords in NICHOLLS' s case which are quoted.

Your Honours, I will not read those two pages but

may we analyse those judgments referred to in this

way. It will be observed, Your Honours, that all

four Law Lords held the view that flying objects,

being ejected from the machine, were not within the

statute. Two of the Law Lords, that is Lord Thankerton

and Lord M:3.cM:illan, felt that contact between the dangerous part and the worker was required. The other two Law Lords, Lord Simonds and Lord Uthwatt,

considered that direct and not indirect causation

was required.

C2T42/l/JL	206	9/5/90
Chugg ( 2)

MR GROSS (continuing): Rather than referring to the need for

contact, Your Honours will sec from the iudgmcnts

that the risk to be avoided is the possibility of

danger or the liability to cause injury.

Lord Simonds and Lord Uthwatt arc not saying

anything concerning the need for contact but all
four Law Lords arc agreed on the central matter
that the legislation is not concerned with, as it

were, injuries at a location distant in geography

and time which result from a flowing projectile

coming out of a machine.

There is a second stream of thinking within the

judgments that the relevant danger is the danger not

of the machine itself but of an identifiable machine part and Lord Thankerton and Lord Uthwatt both refer to that specific need to draw the distinction between

the two situations.

Now, Your Honours, there is no other degree of unanimity amongst the Law Lords other than that which

I have already identified so that when this Court, at

the bottom of page 107, comes to deal with those

various sDcec~cs, it is unclear what it is in those

Law Lords' various judgments is being agreed with but, in our submission, one can find a limited degree of

agreement with what they say.	At the bottom of
page 107:

It is true that the English legislation

under consideration in NICHOLLS's case

contained additional provisions which are not

to be found in the FACTORIES AND SHOPS ACT (Viet.)
and which were regarded as confirmatory of the

view taken concerning the construction of the

particular statutory requirement relied upon by

the appellant in that case, but the absence of

such provisions from the local enactment furnishes

no ground for departing from the plain sense of

s. 59.

Your Honours, can I just focus on that particular part
of the sentence.	What is being said there is that

there may be differences in the legislation but that

is no reason for departing from what the plains sense

of the Victorian section 59 is but the High Court

does not say what is the plain sense of section 59.

(Continued on page 208)

C2T43/l/SH	207	9/5/90
Chugg(2)

MR GROSS (continuing):  One can infer that the Court was

not taken with the idea that flying projectiles

from machines of unspecified quality, so far as

their parts, did not fit within the statutory

scheme but, Your Honours, that sentence merely

means that the plain sense of section 59 should

be applied, without the Court having to say what

it is. And then the Court proceeds to say:

Upon this view the evidence relied upon at the

trial by the appellant was wholly inapt to

impose liability on the respondent for any

breach of the duties created by the section.

Accordingly this branch of the appeal must

fail.

So that ultimately the decision rests on the

inadequacy of the evidence for whatever purpose.

There are three potential analyses that can be

used for defeating the plaintiff's claim, on

the statutory count, but the plaintiff, on any

view, failed all three tests, so that one does

not have contact. One does not have an identified

dangerous part and thirdly, it may be inferred

that the injury mode was seen to be indirect, rather

than direct, although I would accept that that is

perhaps more debatable, so that the Court, in effect,

dealt briefly and without detailed reasons, which

provide later assistance, with a wholly inadequate

set of evidential material, in a case that was not

conducted originally at the trial in accordance

with law.

Your Honours, we would submit that if some

general ratio is to be derived from MUMMERY V

IRVINGS, it is concerned with injuries at

locations separate in time and distance from the

dangerous parts operation; we would submit it

has nothing to do with the present situation where

you have the direct application of the work piece

on to the worker causing injury, where there had been

no separation of either time or distance. (Continued on page 210)

C2T44/l/CM	208
Chugg(2)

MR GROSS (continuing):  Your Honours, before passing

off this part of the argument, may we just say that in reference to section 31(2) which, of course, is the power to make regulations concerning fencing of

work pieces, Mr Justice McHugh, in the present case at page 87, lines 7 to 9, derives some comfort from

section 31(2). Your Honours have the written

submissions we have made concerning the relevance of

section 31(2), but may we say in addition that even

in England where this particular argument first took

root and flourished, this particular argument is now

effectively despatched by the judgment of

Lord Edmund-Davies in the majority judgment in

WEARING V PIRELLI LTD at pages 56 to 57.

I will not take Your Honours to that passage,

but that reasoning and that rejection is, in our
submission, persuasive. Furthermore, for the

State of New South Wales some 25 years ago, the

Industrial Commission in court session in RICHARDS

V BHP, which is on the list of authorities, rejected

this argumentation for the various reasons which
we have set out in our written submissions.

May I now turn, Your Honours, to the second argument which concerns the question of whether

Mr Justice McHugh is right in viewing this as a

case where there is an injury resulting from the

overall machine as an overall or simple operating unit rather than an injury resulting from a dangerous part.
Your Honours, the relevant part of the judgment is

at page 86, lines 4 to 8, and His Honour in various

other parts raises the argument, but His Honour quotes

from Lord Uthwatt at page 86, lines 4 to 8: Lord Uthwatt rejected (at 506) the

contention that the obligation imposed

by the sub-section required the machine

to be "viewed as a simple operating unit,

so as to avoid the possibility of danger

arising to the worker".

(Continued on page 210)

C2T45/l/HS	209	9/5/90
Chugg(2)

MR GROSS (continuing):  Your Honours, it is that analysis

which we would challenge. Your Honours,

His Honour Mr Justice McHugh also appears to have

referred to the way in which the High Court dealt

with NICHOLLS's case including Lord Uthwatt's

judgment and at line 9 on page 86:

The ratio decidendi of MUMMERY,

therefore, is that the machine must be

guarded so as to prevent danger from its

parts but not from its general operation.

Your Honours, it was upon this basis that

His Honour Mr Justice McHugh gave a dissenting

judgment. Can I take Your Honours back to

MUMMERY V IRVINGS because it is important, in our submission, to see all of what Lord Uthwatt said

on this particular situation. If I can go back,

Your Honours, to MUMMERY V IRVINGS, 96 CLR 107,

His Honour Mr Justice McHugh has already, as it were,

referred to what Lord Uthwatt has said concerning

the need to view the machine:

as a single operating unit, so as to
avoid the possibility of danger arising

to the worker.

I am sorry, the rejection of that concept is
involving a breach of the statute but the larger

text of the judgment which is set out on page 107 point 5

of MUMMERY V IRVINGS where Lord Uthwatt is quoted

as saying:

The contention of the appellant is that

the phrase 'every dangerous part', in

respect of which the obligation to fence is

imposed by subsection (1) of section 14,

includes parts which are indirectly dangerous
in that they are liable to throw out

material with such force as to be liable to

cause injury to the worker. Acceptance of

this contention involves the view - indeed

it is the substance of the contention - that

the obligation imposed by the subsection is
to fence the machine, viewed as a single
operating unit, so as to avoid the

possibility of danger arising to the worker

from its operation.

(Continued on page 211)

C2T46/l/JH	210	9/5/90
Chugg(2)
MR GROSS (continuing):

My Lords, in my opinion the sub-section,

whether it be read alone or be read in connexion with the other provisions of

the Act relating to machinery, negatives

the contention. The lines on which the

Act - so far as relevant here - proceeds

is, not to take into account any

machinery as a whole, but to require the

several parts of the machinery to be
considered separately in light of their
construction, position or dangerous
nature".

So that, Your Honours, Lord Uthwatt's judgment

does not affirm, as it were, a subcategory of
exclusion, namely, dangers related to the general
operation of the machine but, rather, the need to
ask the questions in the right order and the first
question to be asked is, whether or not there is

a dangerous part and if one has identified "a dangerous

part" by reference to its "construction, position

or dangerous nature" it becomes irrelevant to
further inquire whether there is a hazard in the
general activity of the machine as an overall
operating unit.

Your Honours, this point emerges in some of the English cases where the need to identify the

dangerous part is emphasized. Your Honours, we

would accept that it is not enough merely to point
to a dangerous situation in machinery as a whole

and it is necessary in each case to inquire whether

a particular part of the machinery is dangerous.

Your Honours, this is best emphasized in

CALLOW (ENGINEERS) V JOHNSO~ (1971) AC 335, which

I will briefly take Your Honours to.

(Continued on page 212)

C2T47/l/DR	211	9/5/90
Chugg(2)

MR GROSS (continuing):  The relevant judgment is that of

the Lord Chancellor Lord Hailsham. Your Honours

have that judgment at page 342F, His Lordship

says:

But, while the policy of the Act is well

established, some of the protection to

the workman which at first sight might be

thought to be available turns out on closer

scrutiny to be illusory. Thus: (1) since it

is only parts of the machinery which have to

be fenced there is no obligation to fence a machine under section 14 if it is dangerous

as a whole but without having dangerous

parts.

And, Your Honours, that we would submit, is the relevant formulation, however, one can have a part -

BRENNAN J: It is not in accordance with the words of the Act,

is it? The Act speaks about parts of machinery,

does it not, in a plant?

MR GROSS:	Yes.
BRENNAN J:	Is there any reason why a machine cannot be part

of the machinery in a plant?

MR GROSS:  Your Honours, I am sorry, I have treated machine

and machinery as being the same. Your Honours,

machinery can either be seen as being a wider or

more narrow class than a particular machine and -

BRENNAN J:  If you are speaking of a part you need to define

what is the whole.

MR GROSS:  With respect, no, you have to identify something

as being the part of a larger entity, provided you say part which has in itself motion or use

in the industrial context. It becomes unnecessary

to define what the wider class is. We may be at

cross purposes, Your Honour, but the matter does

not turn on whether there is a distinction

between machine or machinery. The cases, and I think

our submissions, seem to use the terms

interchangeably, but the duty defence tastens upon

the:-e being a dangerous part and that search does not

depend on what is the larger category which one is

subdividing.

C2T48/l/LW	212	9/5/90
Chugg(2)

MR GROSS (continuing): It is a question of identifying a

mechanical function in a specific part of the, in

a sense, industrial process in a particular machine

or machinery.

The point which we are making in a fairly heavy-

handed fashion is this: that it is true that a part

can obtain its dangerous quality from the industrial

context of its use and, in a sense, from the power

which is transmitted to that part from other parts

of the machine or machinery. However, the fencing

duty applies to the part itself and once there is a
dangerous part so identified, the fact that one can

see generic hazards from the operating unit is not

a relevant matter of further classification.

DEANE J:	Do the cases support proposition 1 in this country?
MR GROSS:	Yes, Your Honour.
DEANE J:	They are quite clear, are they?
MR GROSS:	Yes. Your Honours, the textbooks which discuss the
cases, the practice has always been that if you have got a dangerous part, that is sufficient, for
relevant purposes.
DEANE J:	No, I was following up what Justice Brennan asked
you.  I would have thought, without the benefit of
authority, that what he put to you was clear beyond
mistake and that is an obligation to fence all dangerous parts of "the machinery" included an obligation to fence the machine if it was a dangerous
part of the machinery.
MR GROSS:	Yes. Your Honour, what is the necessary scope or
all of the risks to which the dangerous part or parts give rise and I do not disagree with that proposition, extent or design of fencing must take into account the third part of our submission which concerns
what type of fencing is required.  (Continued on page 214)

C2T49/l/SH 213 9/5/90

Chugg(2)
DEANE J: What was being put to you was that as a matter of

language, tfie machinery in a factory is

something that is quite different to a machine

in a factory and that a machine is part of the

machinery in the factory?

MR GROSS:	Yes, Your Honour. Machinery would appear to be
referring to the, as it were, mechanical processes rather than to a particular industrial unit.

DEANE J: But your answer is, is it,that the Australian cases

establish that for the purposes of a provision

such as section 21 the obligation to fence a
machine, which is part of the machinery, can never

extend to an obligation to fence the whole machine?

MR GROSS:	No, Your Honour, the cases do not say that, that
of course is - - -

DEANE J: Well, that was what I thought was being put to you?

MR GROSS: I am sorry, we are at cross purposes. It may well

be a situation that the degree of fencing required

is such as to render the machine totally unusable

and the cases do say that that does not matter.

DEANE J: Well, then you dispute proposition 1 in Lord

Hailsham's judgment which you just read?

MR GROSS: Well, I W-S.s i:-~t1:1er rcr1clin3 o·ro-c>ositio11 l to 11ean this:

there is no obligation to fence a machine

under section 14 if it is dangerous as a

whole but without having dangerous parts.

The proposition seems to say that if you have got

dangerous parts there is an obligation to fence.

~t does not specify how much fencing you have to

put on or around the dangerous parts, it merely

emphasizes that the statutory criterion of the need

for fencing is a dangerous part. So, I was not seeking

to read it anywhere beyond that proposition. Perhaps

that particular way to look at it convoluted in

describing the extent of the obligation. Can I take

Your Honours elsewhere to WEARING V PIRELLI LTD

where another attempt is made of it - - -

DEANE J: Well, what do you say about Lord Hailsham's

p r o T) o s j_ t: j_ on 2 ?

MR GROSS:  As I recall I do not agree with it, Your Honour.

DEANE J: Well, I would have thought not, but -

C2T50/l/JL	214	9/5/90
Chugg(2)

MR GROSS:	No, Your Honour, it is not a correct summary in
principle, and it endeavours to create exceptions
which do not fit in with the words of the statute.

Your Honours, can I deal then quickly with

"WEARING V PIRELLI LTD, (1977) 1 WLR 48 and,

Your Honours, first of all Viscount Dilhorne, at

51E - - -

DEANE J: What are we looking at this for Mr - - -

MR GROSS:	Just in terms of defining what is necessary to establish the statutory breach. There are only
a few sentences I wish to refer Your Honours to.
Viscount Dilhorne, at 51E says:

For there to be a breach of section 14(1) there must be a dangerous part of machinery and a part which can be identified as such.

And then a better passage in Lord Edmund-Davies'

judgment, at 54G to H - Your Honours have 54G to H,
having quoted section 14(1) of the FACTORIES ACT

1961, His Lordship says:

The issues arising on that provision are:

(1) Was any part of the tyre-making machinery

dangerous and, if so, what part? (2) Was

that part securely fenced or in such a position

or of such construction as to be as safe as it

would be if securely fenced? (3) If the

answer to (1) is "Yes," and the answer to ( 2)

"No," was the respondent's injury caused by the

statutory breach?

(Continued on page 216)

C2T50/2/JL	215	9/5/90
Chugg(2)

MR GROSS (continuing):  So, Your Honours, we would suggest

that the error in the dissenting judgment of treated the two matters as being separate,

water-tight compartments. One, a situation where

there is a dangerous part that causes the

injury; two, where it is, as it were, an overall

operation of an industrial unit that gives rise

to the injury and, in our submission, one does not

reach category two, which is a residual category,

until one has first exhaustively examined the

first question of whether there is within the

machinery a dangerous part requiring fencing.

Your Honours, the other error in that

judgment, we would suggest, was in putting this

particular fact situation, in Mr Azar's case, into

the second, what we call, residual category when, in fact, we would submit on the facts, it plainly

falls within the first.

Your Honours, can I just say something further

about the fencing of dangerous parts? The reference
to fencing a dangerous part may well mean that the
section is directed to machinery to which the
concept of fencing is apposite and that is why
the legislative choice is not fencing the machine

or machinery but rather the dangerous part.

That would tie in with the concept of foreseeability

that seems to be built into the repetitive

construction of the section. But, in any event, Your Honours, there has to be accepted, it would seem, that the fencing of machines as such is not

required by either the English legislation or the

New South Wales legislation. What is required is

fencing of parts of machinery and that requires that

one be able to identify dangerous parts which can, in

truth, be described as parts of machinery.

Your Honours, we would also suggest that the category,which we have called the residual category,

related to the general activity of the machine in

the absence of identified dangerous part is a

category that may be potentially confusing and

ought not be over-extended. It is simpler, in our

submission, and conducive to industrial

understanding, to focus the questioning on whether there is a dangerous part and to ask the questions in, what we would suggest, is the right order

proposed by tord Edmund-Davis.

Your Honours, can I move to the third argument

and that concerns the question of the scope or extent

of the fencing required? The suggestion

emerges from Justice McHugh's judgment that you

only have to fence the gripper head; you do not have

C2T51/l/JH	216	9/5/90
Chugg(2)

to fence the machine, bottles or crates. Now, we

do accept, Your Honours, that argument 3 looks

like argument 1 but approached from a different

angle and, perhaps, our submissions on argument 1

flow necessarily into argument 3. However, in

looking at the degree of protection required by

the section, we would submit that the degree of

protection required must be measured by the

full range of dangers to which the machine part
exposes the worker in foreseeable circumstances and,

indeed, in BUCKLEY's case at page 317 - I will not take Your Honours to it - Chief Justice Dixon said

that there must be adequate protection to the

worker from the danger which the parts of the

machinery create. That would seem to indicate,

Your Honours, that the degree of fencing required

is determined by the nature of the dangers which

are identifed as a matter of foreseeability to begin
with. The fencing must eliminate the danger and,

of course, the criteria in section 27(1), as with

all commonable legislation, is the fencing must

be done securely and it must be maintained in an

efficient state which would tend to suggest, in our submission, that the extent of fencing must be such

as fits in with the general policy of the Act to
advance the safety of factory workers, a matter

which is dealt with in the preamble, and the

particular purpose of section 27, to eliminate, by

fencing, the risk of injury from dangerous parts.

(Continued on page 218)

C2T51/2/JH	217	9/5/90
Chugg(2)

MR GROSS (continuing):  Your Honours, if in fact the

fencing require.cl was only of the gripper head,

that may well revive and repeat the earlier error

which we would submit the English courts have

now extirpated, of looking at the machine when

running empty, that is, without a workpiece in it.

So, in our submission, just as you look at the

dynamic operation in the factory for the purposes
of assessing danger, so also you allow for those
matters in designing your fence. Your Honours,
the type of fence required would plainly appear
to be a barrier or enclosure which, while the
gripper heads can move or are moving, prevents the
worker reaching into the dang~r zone created by
the movement or use of the gripper heads and such
a device would obviously have to disable the
gripper head upon necessary mechanical steps being
taken to lift the barrier or enclosure and allow

access of the worker. Your Honours, may we also

add that the object of fencing legislation of this

kind, both in England and in Australia, has been,

to use Lord Simonds arresting aphorism in NICHOLLS's

case, "to keep the worker out and not the machine in",

so that, in this context, what is required is a

screening of the worker, away from the dangerous

point of operation and not just away from the

particular part itself.

But if, contrary to these submissions, one does

only have a duty to fence the gripper head, in our
submission, if the gripper head had been securely

fenced in an efficient manner, the injury would,

in any event, have been prevented. It would have

stopped the machine from working but that is not

a relevant consideration under the Act and a

securely fenced gripper head, which might look rather

strange on its own without any milk bottles around

it, would nevertheless be what would be required by

the absolute terms of the statute, having regard

to the express terms of section 27(2), which

Your Hor1ours, that completes my submission. emphasizes the absolute nature of the duty.

BRENNAN J:  Thank you, Mr Gross. Mr Ward, have you anything

in reply?

MR WARD:  Yes, very briefly. Your Honours, Your Honour

Justice Brennan did point out that we could treat

the whole machine as a danger but, in our submission,
that is not the case that was made out here and

in which the defendant came to answer. There was no

suggestion made that the machine as a whole should

have been fenced and that could have constituted the

danger so, we would submit, that that - - -

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DEANE J:	But if the conveyor belt is a machine, as it

obviously is - - -

MR WARD:	It is part of the machine, with great respect.
DEANE J:	It is certainly part of the machinery and the

gripper arm is certainly part of the machinery,

why is not the inte:i::relation between the two,

of itself, a dangerous part of the machinery

in this factory?

MR WARD: Well, Your Honour, if it has been particularized

that the -

DEANE J: Well, I can see the force of that, but if that is

the basis upon which we are asked to deal with it,

to produce a result that is fairly obviously

unjust, why should we deal with it on that

basis? Why should we not simply revoke leave?

(Continued on page 220)

C2T52/2/CM	219
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MR WARD:	I am sorry, Your Honour?
DEANE J:	Why should we not simply revoke leave to appeal if
it is put to us, "Oh, it may well be, that looked
at in a sensible way, that was part of the machinery
but that hasn't been particularized"? I mean, the
point is still the same, whether this part of the
machinery in the factor~ which exposed a worker
who tried to pick out a bit of glass without turning off the machine to the risk of having his hand forced on to the glass, was a dangerous part of the
machinery?

MR WARD: Well, we would submit that the case was dealt with

in the Court of Appeal on the basis that this is

the area, this is the area that we are considering

now as to whether two objects in the machine can

create a danger and if that creates the danger then

that is another point again.

DEANE J:	I can see the force in that, Mr Ward, but one cannot
help feeling that if you isolate it as a moot point -
MR WARD:	If it stood in itself - on its own, Your Honour, yes.
DEANE J:	- - - in a case where it would involve a denial of
justice in this Court on what seems to be the
apparent factual situation, it is not irrelevant that the Court does have the power to revoke the grant of special leave.
MR WARD:	No, with respect, I appreciate the point being made,
Your Honour.  My friend had referred to section 27
and 27(1)(d) does refer to maintaining fencing of
parts - of the dangerous parts, emphasizing that.
In that WEARING V PIRELLI I did - my friend has referred to it again - there is an error in the report that we are relying on in the Weekly Law
Reports at page 53 and I have checked with the
All England Reports which my learned friends
this morning referred to and it corrects
that error.  On page 53, at letter B, it says:

The jerk caused his wrist or hand to hit

the beading with such violence that the

bone was broken and but for the fact that

the finding that the drum was not dangerous

was not challenged -

now, that "not" should not be in there. In the

All England Reports, at page 343 - - -

BRENNAN J: That is the first "not" should not be there, is

that right?

MR WARD:	The first "not" should not be there, yes, that
appears from page 343, letter B, in the All England
Reports and it is referred to in the headnote in

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the Weekly Law Reports on page 449, just before

what the Court held. It says:

Counsel for the defendants accepted the

finding that the machine was dangerous -

and that was, accepted the finding that the

rotating drum was dangerous and that at page 53,

the passage where the error occurs, attention

is drawn to the fact that if that concession had

not been made - that the drum was dangerous -

that it was doubtful whether the plaintiff would

have succeeded in that case because he had to

make contact with the dangerous part.

Your Honours, I think I have already made the

point that so far as the two objects - we would
maintain that the two objects in the machine are what
should come together here and that if you are

looking at a die situation, as my friend

referring to, the plaintiff would allege that both

the upper part of the die and the lower part of
the die are dangerous parts so that if you are
working the machine and the upper part of the die

brings the material down and on to your hand then

it is coming in contact with a dangerous part of

the machine - being the base of the die where the

knit between the part and the work piece would

occur. Those are our submissions, if Your Honours

please.

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

decision in this matter.

AT 3.05 PM THE MATTER WAS ADJOURNED SINE DIE

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