Statutory Duty—Factory legislation (Q.)—Lifting or moving weights likely to cause risk of injury—Employee with pre-existing susceptibility to injury—Factories and Shops Act 1960 (Q.), General Rule, r. 1, cl. 25(1). Negligence—Duty of care—Master and servant—Safe system of work—Employer's duty to provide—Application of statutory requirements—Moving object "so heavy as to be likely to cause risk of injury".
Decisions
GIBBS C.J., MASON, WILSON and DAWSON JJ.: This is an appeal by special leave from a majority decision of the Full Court of the Supreme Court of Queensland (Andrews A.C.J. and McPherson J., Derrington J. dissenting) dismissing an appeal from the decision at first instance of Shepherdson J. The action was instituted by the appellant. He claimed damages for negligence and breach of statutory duty in respect of personal injury suffered by him on 7 April 1977 in the course of his employment by the respondents. He was then forty-one years of age and had been employed as a boilermaker and welder by the respondents for about eleven months.
2. The evidence discloses that on 7 April 1977 the appellant was engaged in welding cleats on rolled steel joists described as universal beams. Each beam was between 8.5 and 10 metres long and weighed about 310 kilograms. There were thirty beams in all and he had been occupied on the task for about three weeks. The task required each beam to be lifted by mechanical means on to two steel trestles. Each trestle was about 1.25 metres wide with the top on which the beam rested consisting of a piece of inverted angle iron, thereby presenting as small a surface as possible in contact with the beam. In order to weld the cleats on each beam it was necessary for the beam to be turned four times as it lay on the trestles. This was done by using a steel bar as a lever. The effect of turning a beam was to move it towards one side of the trestle so that it became necessary from time to time to slide the beam back towards the centre of the trestle. This was done by the appellant standing beside one end of a beam and using two hands to pull it towards him. No lifting was involved. The learned trial judge described these manoeuvres as simple tasks. He accepted evidence that levers of the type referred to in the case were in common use and that there was no need for more than one man using such a lever to turn a ten metre long universal beam weighing 310 kilograms. The trial judge also found that the respondents' foreman, Mr Holder, told the appellant that he could have assistance to turn the beams over; however, the parties now agree that there is no evidence to support that finding. At the same time the evidence of Mr Sehmish, who was employed as…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Waugh v Kippen [1986] HCA 12
Case
[1986] HCA 12
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered the appeal in *Waugh v Kippen*. The dispute concerned the interpretation of a clause in a will that established a discretionary trust for the benefit of the testator's grandchildren. The primary issue was whether the testator's daughter, who was the trustee, had a power to appoint income or capital to herself.
The court was required to determine whether the trustee, the testator's daughter, possessed a power to appoint income or capital of the trust to herself, notwithstanding the trust's stated beneficiaries being the testator's grandchildren. This involved an examination of the language used in the will to ascertain the testator's intention regarding the trustee's beneficial interest in the trust property.
The High Court held that the trustee did not have the power to appoint income or capital to herself. The Court reasoned that the language of the will, particularly the phrase "for the benefit of my grandchildren," clearly indicated an intention to exclude the trustee from any beneficial interest. The Court applied the principle that where a power of appointment is given to a trustee, and the beneficiaries are clearly defined, the trustee cannot exercise that power for their own benefit unless the trust instrument expressly permits it. The Court found no such express permission in the will.