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Vozza v Tooth & Co Ltd [1964] HCA 29; (1964) 112 CLR 316 (11 May 1964)

CATCHWORDS

HEARING

DECISION

KITTO J. I agree in the judgment to be delivered by Windeyer J. and have nothing to add. (at p317)

TAYLOR J. I have had the opportunity of considering the reasons prepared by Windeyer J. in this case and I agree with his observations and conclusions. Accordingly I would dismiss the appeal. (at p317)

WINDEYER J. This is an appeal from a judgement of the Supreme Court of New South Wales which set aside a verdict found for the plaintiff in an action at nisi prius. By a majority (Sugerman and Manning JJ.) that Court ordered that judgment be entered for the defendant. Brereton J. dissented. He considered that there should be a new trial. (at p317)

2. The appellant, whom it will be convenient to call the plaintiff, was employed by the respondent company, the defendant, a brewer. The plaintiff's task was to take bottles of beer out of baskets in which they had been when in a pasteurizer and place them on a conveyor belt for movement to another part of the brewery. As a result of the temperature to which bottles and their contents were subjected in the pasteurizer some bottles burst. It is said that about one in two hundred did do. That was a significant number, as some five hundred and fifty dozen bottles went through the pasteurizer in an hour. In the course of his duties the plaintiff had to pick up pieces of glass, the debris of broken bottles. Sometimes a bottle burst in his hand or immediately after he had set it down. There was then a danger of his being hit by splinters of glass. He was given gloves to protect his hands, and goggles to protect his eyes. Similar equipment was provided for other persons working elsewhere in the bottling department. The gloves were of good quality leather. They gave a considerable measure of protection against cuts by broken glass, although they were not impenetrable. Men were occasionally cut on the hand through the gloves; and, according to the plaintiff's evidence, he and others sometimes received cuts on other parts of the body. Although the plaintiff's task was not free from risks, it appears that the chance of anything other than a superficial injury occuring to the hand of a man wearing gloves was not great. However that may be, the plaintiff suffered a somewhat deep cut on the back of his right hand when a bottle burst. He was away from work for a period. He returned to work; but later he developed some psychological disorder caused by, or associated with, the physical injury to his hand. He was said to have thereby become totally incapacitated for manual work. (at p318)

3. The accident was one that arose in the ordinary course of the plaintiff's employment, the kind of happening for which the system of workers' compensation is designed to provide. But it had unexpectedly serious consequences; and the plaintiff brought this action for damages against the brewery company. He alleged that it had failed to take reasonable care for his safety, had failed to provide suitable plant and equipment, to devise and maintain a safe system of work and so to conduct its operations as not to subject him to unnecessary risk. These phrases are the commonplaces of this branch of the law of negligence. The vigorous assetion of them may sometimes obscure for juries the essential simplicity of the issue in a common law action for negligence. It may seem that, because an accident has happened and a workman has been injured, his employer is liable for damages if it can be shown that, by some means, the accident might have been avoided. That is not so. The statement that the common law requires that an employer have a safe system of work for his employees means only that he must take reasonable care for their safety. It does not mean that he must safeguard them completely from all perils. "The ruling principle is that an employer is bound to take reasonable care for the safety of his workmen, and all other rules or formulas must be taken subject to this principle." That statement, made by Lord Keith of Avonholm in Cavanagh v. Ulster Weaving Co. Ltd. (1960) AC 145, at p 165 was repeated and approved in the House of Lords in Brown v. Rolls Royce Ltd. (1960) 1 WLR 210 The latter case and Neill v. N.S.W. Fresh Food and Ice Pty. Ltd. [1963] HCA 4; (1963) 108 CLR 362 establish that the legal burden of proving an absence of reasonable care on the part of a defendant employer remains on the plaintiff workman throughout. Observations to the contrary in McDonald v. British Transport Commission (1955) 3 All ER 789 should be disregarded. For a plaintiff to succeed it must appear, by direct evidence or by reasonable inference from the evidence, that the defendant unreasonably failed to take measures or adopt means, reasonably open to him in all the circumstances, which would have protected the plaintiff from the dangers of his task without unduly impeding its accomplishment. To quote a sentence from one of the cases to which counsel referred, "What is 'a proper system of work' is a matter for evidence, not for law books": per Lord Denning in Qualcast (Wolverhampton) Ltd v Haynes (1959) AC 743, at p 760 (at p319)

4. The question on this appeal is thus whether there was any evidence on which a reasonable jury could find the defendant company was negligent. The case put for the plaintiff at the trial was that the defendant was negligent in two respects: first, in not installing machinery which would make it unnecessary to remove bottles from the pasteurizer by hand; secondly, in not providing the plaintiff with thicker gloves. In support of the first allegation the plaintiff called evidence that in some other breweries in New South Wales bottles were not removed from the pasteurizer and placed on a conveyor by hand, but were taken both into and out of the pasteurizer on a conveyor. It was not made clear whether where this system was in use it was still necessary to have a man at the pasteurizer; nor whether, if a man were there, he was still exposed to danger by bursting bottles. It may, however, be reasonable to infer that the risk of a man having his hand cut would be reduced by eliminating the handling of bottles at the stage when they were most likely to burst. But the evidence about this mechanical arrangement was scanty and scrappy. It did not appear that it was in general use in Australian breweries. No description of it was given sufficient to enable the jury to contrast it with the defendant's system, or to assess its advantages and disadvantages, or to say whether or not it would have been practicable and reasonable to install it in the defendant's premises. That its absence showed that the defendant was careless of the safety of its employees is a conclusion that could not rationally be drawn from the meagre evidence adduced. (at p319)

5. The gloves are a different matter. What is said is that, as the risk of a man being cut by broken glass was foreseen, some protective covering which would prevent this occurring ought to have been provided. But what form of protection would have been effective generally and suitable for this purpose was not stated. In this case a splinter of glass happened to cut the back of the plaintiff's hand, not his forearm or some other part of his body as had occurred on other occasions. Attention was thus restricted to alleged deficiencies of the gloves. Gloves of the kind that the plaintiff was wearing were produced. They were before the jury as an exhibit. They were not flimsy. But it was urged that, as gloves of that kind were, particularly when wet, not always proof against sharp pieces of glass, gloves of stouter leather should have been provided. No evidence was given that gloves could have been had that would provide complete protection against any mishap - or even better protection against this mishap - and in which the wearer could perform the task of handling wet and slippery bottles and of picking up pieces of glass. An Inspector of the Department of Labour and Industry was called for the plaintiff. He was called in connexion with an argument that, as there is a regulation, applying in this industry, requiring an employer to provide gloves approved by a Chief Inspector of the Department, the fact that the defendant had not asked for and obtained express approval for the gloves that it provided was evidence of negligence causing the accident. It seems to me that this proposition was quite untenable. I would be prepared to assume that if the gloves that were being used were of a kind that the Chief Inspector of the Department had disapproved as not giving sufficient protection, that fact, at all events if it had been made known to the defendant, would have been admissible - not because the regulation had not been complied with, but because its breach in such circumstances would have been some evidence of negligence. But there was no suggestion of anything like that. As far as the evidence showed, no one had ever disapproved or complained of the gloves. Therefore all that the departmental witness was heard to say was that more strongly reinforced gloves could be bought. He did not say that they would be suitable for the task the plaintiff was performing. He said only that different kinds of gloves, some thicker some thinner, were known and were used in different industries. There was thus really no direct evidence in the plaintiff's case on which a finding adverse to the defendant could be based. The defendant, however, called a witness, Partridge, a consultant safety engineer of considerable experience, who had been at one time a tanner and who at the time of the trial owned a glove factory. He said that the gloves provided by the defendant were superior - that is, made of better quality leather - to those provided in other breweries that he named where the same system of handling prevailed. He was asked about gloves having double thickness on the palms, such as he said are used in foundries and other places for handling large objects. The effect of his evidence was that these would be unsuitable - as indeed seems obvious - for picking up small pieces of glass and grasping slippery articles such as wet bottles. He said too that using thicker leather for the backs of gloves such as were supplied would make them less suitable because less supple. He was asked and answered questions in cross-examination as follows: - "Q. You would agree with me that, with your expert background, it would be quite easy to devise a better glove for the job than this, wouldn't you? A. It is a very difficult thing to do because there are so many things tied up in it. You give a man too thick a glove to wear and he won't wear it. Q. Assume he wears it, you could devise a much better glove than this, couldn't you? A. I would say I could devise a much better pair, yes. Q. You would devise one that would keep the glass out? A. I would not guarantee that. Q. But a much better one would keep the glass out? A. I would make a better glove but I would not guarantee that they would wear it." (at p321)

6. The plaintiff relied upon these answers to supply the deficiencies of his own case in chief. But do they help? The witness said only that he could make a better glove - not an impenetrable glove. And he was not prepared to say that it would be accepted by workers as convenient to use. Could this statement entitle a jury to find that the defendant company had neglected to take reasonable care for the safety of its worker, the plaintiff? And could the failure to provide the "better" glove that the witness said he could make be held to be the cause of the accident? The case no doubt is one of a kind in which a jury could assess evidence without the assistance of expert testimony, relying upon their own common knowledge and experience. But, although they did not need the guidance of experts, the jury did need to have evidence on which they could find the defendant guilty of negligence. To speak of a jury using their experience, common sense and common knowledge means nothing unless they be given facts to which they can apply their experience, common sense and common knowledge. The jury here really had no evidence that a different form of glove could have been provided, which would have been practically usable, and which would have prevented the injury that this plaintiff suffered. Had a pair of gloves been produced and put forward as a sample of those that it was suggested should have been provided, the jury would then have had some material to which they could apply their stock of common knowledge. They could have then considered whether such gloves would have been suitable for use and effective to prevent the injury to the plaintiff. The case is not like those referred to in the judgment of Taylor and Owen JJ. in Neill v. N.S.W. Fresh Food and Ice Pty. Ltd. (1963) 108 CLR, at p 369 - cases in which a jury could of their own knowledge say that something could and should have been done to obviate a risk, without any evidence being needed of any particular means that might have been adopted. (at p322)

7. I agree in the conclusion of the majority of the Supreme Court and would dismiss the appeal. (at p322)

8. It is not strictly necessary to say anything more. I do so, however, because in the judgments delivered in the Supreme Court there are animadversions concerning the conduct of the leading counsel who appeared for the plaintiff at the trial. The matter having been canvassed before us, I desire to say that what occurred seems to me to have been the consequence of a misunderstanding for which no one person was wholly responsible. During the course of the trial, and before the close of evidence for the defendant, the learned trial judge made some remarks in response to some application or enquiry by counsel for the defendant - which remarks he, counsel, apparently construed as meaning that his Honour proposed to tell the jury that they could not, as the evidence stood, treat the absence of a conveyor as establishing negligence on the part of the defendant. Although it was said that his Honour gave a ruling, it is apparent that his remarks could not have amounted to a direction to the jury; for the evidence was not closed. Counsel for the defendant had made no application at the close of the plaintiff's case for either a non-suit or a verdict by direction. He went into evidence. He called the witness Partridge and asked him first about what went on in other breweries. The witness said that in some breweries other than the defendant's brewery, including one large brewery in Victoria, bottles were taken into pasteurizers in baskets and afterwards lifted from the baskets by hand - in other words, that in those breweries the system was the same as in the defendant's brewery. This evidence was, of course, quite inconclusive. The plaintiff could not establish that the defendant was negligent by showing only that some breweries used conveyor belts, not baskets. And, on the other hand, if a failure to have such conveyor belts did amount to negligence, that conclusion was not rebutted by showing that some other breweries did not have them. However, the defendant's counsel, having gone thus far, apparently thought he had gone far enough and sought and got the statement by his Honour that in his view the absence of a conveyor belt could not be said to amount to negligence. Counsel therefore called no further evidence on this aspect and, to the knowledge of the plaintiff's counsel, allowed some witnesses who were in attendance to leave. If his Honour thought it desirable, in order to shorten the case, to state his view at that stage, he, being in charge of the trial, could properly do so. The argument for the appellant that it was beyond his power to do so was, in my opinion, quite mistaken. Despite what his Honour had said, counsel who appeared for the plaintiff at the trial, when addressing the jury referred at some length to the absence of a conveyor. This was perhaps regrettable. But his Honour did not think it necessary to stop him. At the close of the evidence his Honour had refused a request by the defendant's counsel that he direct the jury to return a verdict for the defendant. In this, for the reasons I have given, I think his Honour was in error. But he, seeing the matter as he did, said: "In my opinion this case must go to the jury. I do not think it possible to urge as a matter of law that there is no evidence of negligence . . . . This is essentially a case for the jury. I do not propose to give a detailed judgment on this application because it will necessarily emerge from the terms of my summing up what issues I think are for the jury in this case . . . ". (at p323)

9. The issue for the jury was therefore, Was there negligence causing damage? There were not two causes of action for trial, one of which could be withdrawn from the jury and a verdict directed on it. The action was an action for negligence, a single tort. To establish negligence the plaintiff had relied upon two particular matters; the absence of a conveyor and a failure to provide different gloves. The employer's duty of care was thus said to have been transgressed in two ways, and evidence relating to both was called on both sides. But throughout the proceedings there was only one cause of action: see Mummery v. Irvings Pty. Ltd. [1956] HCA 45; (1956) 96 CLR 99, at p 110; Doonan v Beacham [1953] HCA 38; (1953) 87 CLR 346 His Honour, when he came to sum up to the jury, rightly treated the issue for them as a single issue. He may perhaps not have made it as clear as he might what were the particular questions that they must consider in determining that issue. However, he told them, as he had indicated that he would, that they should disregard the evidence about the conveyor. His actual words were: " . . . some of the evidence called was just remotely relevant. For myself I do not see how the evidence of Mr. Rosen (about the existence of conveyors in other breweries) assists the determination of this case in any way". It seems to me that counsel for the defendant could not justly protest against his opponent having in his address to the jury alluded to the matter of the conveyor. He had himself called some evidence relevant only to that matter. It is regrettable, however, that counsel for the plaintiff should in his address have made some of the remarks that he did. Although not directly defiant of any direction that the trial judge had given, and not treated as such by him, they were not supported by any evidence and were prejudicial. But, as I consider that the defendant was entitled to judgment in its favour, the matter need not be further pursued. (at p324)

10. The appeal should be dismissed. (at p324)

OWEN J. For the reasons given by Windeyer J. I agree that the appeal should be dismissed. The allegation that the defendant had been guilty of a breach of the duty of care owed by it to its employees because it had not installed machinery which would have obviated the necessity of handling bottles as they emerged from the pasteurizer found no support in the evidence. Nor is it possible to find evidence capable of justifying the further allegation that the defendant had failed to take reasonable care to preserve the plaintiff from injury because the gloves with which he had been supplied did not afford complete protection against fragments of glass from bursting bottles. No doubt some form of glove could have been devised which would have been impenetrable but there was a complete absence of evidence upon which it could have been found that a glove made of sufficiently stout material as to provide complete protection would have been reasonably adapted for use in the work which the plaintiff was required to perform, namely the rapid picking up and putting down of wet beer bottles, which were liable to burst if knocked or dropped, and the picking out of pieces of broken glass from amongst the bottles as they emerged from the pasteurizer. (at p324)

2. In these circumstances it is unnecessary to consider an alternative submission made to the Full Supreme Court by counsel for the defendant that the fair trial of the action had been prejudiced by the conduct of counsel for the plaintiff. In fairness to the latter, however, I think I should say that I am unable to take the view that he deliberately acted in defiance of a ruling said to have been given by the learned trial judge at some earlier stage of the case. While criticism may fairly be made of some of the phrases that counsel used in his final address to the jury since in some respects they exceeded the bounds of fair advocacy, I see no reason to doubt that counsel genuinely believed that the issue to which his remarks were directed was one which would be left to the jury or at least had not already been ruled out. (at p325)

ORDER