Tector and Tector v Foster

[1996] QCA 149

IN THE COURT OF APPEAL	[1996] QCA 149
SUPREME COURT OF QUEENSLAND

Appeal No. 211 of 1995.

Brisbane

[Tector v. Foster]

BETWEEN:

GARY JOHN TECTOR and

DEBRA KAY TECTOR

Appellants

AND:

ALLAN RUSSELL FOSTER

Respondent

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Pincus J.A. Williams J. Byrne J.

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Judgment delivered 24/05/1996

Judgment of the Court

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APPEAL DISMISSED WITH COSTS

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CATCHWORDS: PERSONAL INJURY - employer/employee - failure to use safety
equipment - work practice - contributory negligence - inadvertence,
inattention or misjudgment; or contributory negligence - question of fact
and degree.

Bankstown Foundry Pty Ltd. v. Braistina (1986) 160 C.L.R. 301.

Counsel:	Mr M Hinson for the appellants. Mr R Morton for the respondent.
Solicitors:	Ebsworth & Ebsworth, town agents for Corser Sheldon & Gordon for the appellants. Carswell & Co. for the respondent.
Hearing date:	13 May 1996.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 211 of 1995.

Brisbane

Before Pincus J.A. Williams J. Byrne J.

[Tector v. Foster]

BETWEEN:

GARY JOHN TECTOR and

DEBRA KAY TECTOR

Appellants

AND:

ALLAN RUSSELL FOSTER

Respondent

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 24/05/1996

This is an appeal from the District Court in which damages were awarded to a plaintiff/worker.

The negligence of the appellants/employers is conceded. The issue is whether a finding of contributory

negligence should have been made, on the basis that the respondent should have used an implement

called a push stick.

The respondent was employed by the appellants as a carpenter/joiner at the time of the

accident, the subject of the action. The accident occurred during the operation of a bench saw in the

appellants workshop. In the course of cutting a piece of timber in two, the respondent allowed his right

hand to contact the saw blade and so was injured.

The bench saw was of the usual type: a circular saw protruded up out of the bench; it was

adjustable in height and the cutting edge of the blade rotated down into the timber being cut, as it was

moved past the blade. To one side of the saw blade, attached to the saw bench, there was a sliding

table upon which material being cut could be moved past the blade; this table moved back and forth

parallel to the cutting edge of the blade. On the other side of the bench was fixed what was referred to

in evidence as the fence, guide rail, ripping fence or guiding fence. This fence was a movable section of

metal which was positioned parallel to the line of the blade. The fence was adjusted so that the gap

between the blade and the fence was the width of timber desired to be cut off. With the fence locked

in position, the timber would be fed through the saw, the timber being pushed hard against the fence as

it was pushed through the saw blade, in order to maintain a uniform, straight cut. The fence could move

in a direction parallel to the blade while being positioned, but would be locked in position once the

settings for the desired width were fixed.

An item which was, the respondent admitted, provided in the workshop for use with the bench

saw was a push stick. This was of plastic construction, about 370mm long with a notched end in the

shape of a ‘V’. The push stick could be used to hold a piece of timber against the fence and push it

through the saw and out the other side as a cut is finished. The proper use of the push stick, towards

the conclusion of a cut, was to avoid the operator’s hands coming too close to the blade, as they would

otherwise be inclined to do.

The bench saw in question did not, at the time of the respondents injury, have attached to it two standard attachments, which are referred to in the evidence as the safety hood and the back knife, and it was this which led to the finding that the appellants were liable in damages for the respondents injury.

When attached, the back knife protrudes up through the bench just behind the saw blade and

the back knife passes through the cut in the timber made by the blade. The purpose of the back knife

was in contention. The respondent’s opinion was that the back knife assisted the control of the timber,

helping to prevent ‘jamming, pinching on the saw blades’ which caused the wood to be picked up by

the blade and thrown towards the face. Mr Chaseling, a mechanical engineer, disagreed with this and

said that the principal purpose was the support of the safety hood, pointing out that the blade was

slightly wider than the back knife. The primary judge largely accepted Mr Chaseling’s evidence on this

point, while still giving some weight to the respondent’s view.

When attached, the safety hood would be attached to the top of the back knife and would,

when in position over the blade, help prevent accidental contact with the saw blade. When the saw was

in operation, the hood had to be lifted at the front of the saw to the thickness of the timber being cut;

the rear of the hood would then lift up as the timber pushed past the blade.

The respondent was injured when operating the bench saw, neither the back knife nor the safety

hood being attached. He was attempting to cut strips 70mm wide by 2.4m long [from a sheet of white

board 300mm wide by 2.4m long]. The respondent had the fence set to cut 70mm strips and was

feeding the white board in to the saw with two hands, keeping the edge of the white board hard against

the fence in order to ensure a straight cut. The injury occurred as the respondent was feeding the cut

strip out the back of the saw after the cut had been made, the white board then being in two pieces; one

230mm wide by 2.4 m long, the second 70mm wide by 2.4m long. As he was moving the remainder

of the 70mm by 2.4m piece out the back of the saw it moved a little towards the rotating blade and was picked up by the teeth of the saw; that threw his hand backwards and into the unguarded saw blade.

The major cause of this accident was plainly the failure to use or have attached to the bench saw

the back knife and safety hood, which effectively guard the blade from accidental contact such as that

which occurred here. With the safety hood in place the gap between the fence and the hood, within

which the respondent could place his hand, would have been reduced to some 50mm; there would have

been less room for the operator to put his hand and greater likelihood of his using the push stick. The

evidence of the respondent, with whom the primary judge was impressed, was that had there been a

back knife in place his hand would have struck the back knife and not the blade. The primary judge

accepted this evidence.

The respondent also gave evidence that the back knife and the safety hood were not in use at

the workplace because it was thought that too much time and effort were expended in having it

attached, raising and lowering it and taking it off when doing some jobs. The male appellant gave similar

evidence to the effect that it was standard practice at the workplace not to use these safety devices. It

is clear that the practice of the workshop was to not use the back knife or the safety hood on this bench

saw.

The appellants case, is that the respondent, knowing that the blade was unguarded and knowing

that there was a push stick available, was contributorily negligent in that he used his hand to push timber

past the saw instead of using the push stick. The appellants argue that this failure to use the push stick

ought to be characterised as negligent, in the light of the respondents extensive experience with the saw, his knowledge and awareness of the risk of injury when the hand was in close proximity to the blade

and the lack of any compelling reason for not using the push stick.

Mr Morton, for the respondent, argued that these were marginal cases in which the operator

of the saw needed to make a judgment about whether to use hands or the push stick to control and push

the timber on to the saw and out the other side. The greater control obtained by using hands had to be

balanced, as suggested, against the lower risks of injury using the push stick on thinner cuts of wood in

close proximity to the saw blade. Mr Morton argued that the cutting of a 70mm wide strip was, on the

evidence, a marginal case; he referred to evidence of Mr D. Tector that it is up to the discretion of the

operator to use the push stick when required. The respondent admitted that he used the push stick on

cuts of 50mm or less, but with cuts of 70mm and greater he would use his hands because he thereby

obtained greater control of the movement of the timber at the end of the cutting operation. Mr G. J.

Tector, the male appellant, gave evidence that one needs to use the push stick on 70mm wide cuts, but

that on anything wider than that one would push the timber through using hands, because of the better

control it gave.

Use of the bench saw without the back knife and the safety hood was clearly dangerous, even

more so when the push stick was not used, but this mode of working was in accord with the practice

of the workshop, at least when a strip of more than about 70mm width was being cut off.

In Bankstown Foundry Pty Ltd v Braistina (1986) 160 C.L.R. 301 at 310, in a dictum adopted

by the primary judge, the majority of the court in discussing the possibility of a finding of contributory
negligence against an employee, stated the test as being:

“whether, in the circumstances and under the conditions in which he was required to work, the conduct of the worker amounted to mere inadvertence, inattention or misjudgment, or to negligence rendering him in part responsible for the damage.”

The question whether the failure to use the push stick should be characterised as ‘mere .......

misjudgment’ on the one hand or contributory negligence on the other, is one on which there is room

for differences of opinion, but it is essentially one of fact and degree on which this Court would not

lightly set aside the conclusion of the trial judge. Having regard to the evidence of the rather loose

practise followed in the appellant’s workshop, conformity to which was likely to increase the risk of

injuries of the kind in question, it is difficult to understand how it can be said that the judge’s conclusion

was not one properly open. In the circumstances there are no sufficient grounds for disturbing the

primary judge’s finding on the question of contributory negligence.

It follows, in our view, that the appeal must be dismissed with costs.