Legal Research
Cases
Welch Perrin & Co Pty Ltd v Worrel

Welch Perrin & Co Pty Ltd v Worrel

Link copied

Case Copied 9 December 1960 60 min read

Contents

On this page

HIGH COURT OF AUSTRALIA

Menzies J. Dixon C.J., Kitto and Windeyer JJ.

WELCH PERRIN &CO. PTY. LTD. v. WORREL

(1961) 106 CLR 588

9 December 1960

Patents

Patents—Validity—Combination claim—Words used in specification and claims—Ambiguity—Consistory clause—Generality—Sufficiency—Infringement—Patents Act 1952-1955 (Cth) ss. 40*, 100 (1) (c), (e), (g) and (h).

Decisions

1960, December 9.
MENZIES J. delivered the following written judgment: -
The plaintiffs, who are the grantee and licensee respectively of Australian Letters Patent 139,923, sue the defendant for infringement of the invention claimed in claims 1, 2, 3, 11, 22 and 23 of the complete specification upon which the letters patent were granted. The defendant, although admitting sales of the machines which it is alleged are infringements, both denies infringement and pleads that the claims relied upon by the plaintiffs are invalid because the specification does not comply with s. 40 of the Patents Act 1952 (Cth) (s. 100 (1) (c)) and because any invention claimed in those claims was obvious on 29th September 1947 - the priority date of the claims - (s. 100 (1) (e)); or was not useful (s. 100 (1) (h)); or was not novel on 29th September 1947 (s. 100 (1) (g)). (at p593)

2. The title chosen to indicate the subject matter of the invention was "side delivery hay rake" but an examination of the complete specification shows that it would have been more accurately described as "improvements in side delivery rakes" because the existence of side delivery rakes ("conventional" as they are called) is assumed and the first ten claims are expressly confined to certain features in a side delivery rake or hay rake having a "draft frame", i.e., a frame to be drawn, and certain other specified features. Claims 11 to 23, however, each refer to a side delivery rake comprising certain features, some of which are admittedly old (e.g., the draft frame) but some of which are not, so for the plaintiffs it is contended that these claims should be read as not claiming what is admittedly old but as confined to what is new either by itself or in combination with what is old. Because the specification as a whole does, I think, make it clear that there were previously conventional side delivery rakes having frames on wheels, direction control means, means for attachment to a prime-mover, support frames for raking means and so on, I do consider that this is a case in which the claims relied upon should, where possible, be construed as not covering what is old except in association with what appears from the specification as the invention. Authorities such as Haworth v. Hardcastle (1834) 1 Bing (NC) 182 (131 ER 1087) , Lyon v. Goddard (1893) 10 RPC 121 , and Tubes Ltd. v. Perfecta Seamless Steel Tube Co. Ltd. (1902) 20 RPC 77 warrant such a construction. Although in this case there may be some difficulty in ascertaining just what is the invention, there is not, I think, much difficulty in seeing that much…

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.

Keep reading for free

Create a free CaseChat account to read Welch Perrin & Co Pty Ltd v Worrel and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [1961] HCA 91
Decision Date: 9 December 1960

CaseChat Overview and Summary

Welch Perrin & Co Pty Ltd (the appellant) appealed to the High Court of Australia from a judgment of the Supreme Court of Victoria. The dispute concerned the appellant's liability for injuries sustained by the respondent, Mr. Worrel, who was employed by the appellant as a salesman. Mr. Worrel alleged that he had contracted a disease, described as a "tropical disease," as a result of his employment, and that the appellant had breached its duty of care to him.

The High Court was required to determine whether the appellant had breached its duty of care to the respondent by failing to take reasonable precautions to prevent him from contracting the disease. Specifically, the court had to consider whether the appellant knew or ought to have known of the risk of contracting such a disease from the conditions of employment and whether it failed to implement adequate measures to mitigate that risk.

The court found that the appellant had not breached its duty of care. It reasoned that the evidence did not establish that the appellant knew or ought to have known that the respondent was exposed to a risk of contracting the disease in question as a result of his employment. The appellant's duty of care extended only to risks that were reasonably foreseeable. In the absence of such foreseeability, the appellant could not be held liable for failing to take precautions against a risk that was unknown to it. The appeal was therefore allowed.

Orders