Australian Iron & Steel Pty Ltd v Luna

Australian Iron & Steel Pty Ltd v Luna - [1969] HCA 66 - HCA 1969 case summary — Zoe

[15]

In making the choice between these two views, it is not unimportant, in my opinion, to observe that the statute does not speak merely of "access" but of a "means of access", though, of course, a wide denotation must be possible of what may constitute such a "means". Such "means" are to be "provided" as well as maintained. Allowing for the fact that the statute is designed, speaking generally, to promote safety of working conditions, I do not think that by this section the legislature intended to impose a statutory obligation upon employers in respect of all surfaces over which an employee might move in the performance of the work he is employed to do. There must be a great range of operations in industry in which the performance of the assigned job of work requires the employee doing it to move from one place to another, places perhaps proximate to each other, or perhaps distant apart. For example, a moulder pouring moulds on a floor by means of a ladle must move from the cupola or furnace along the moulding floor to each mould in turn: and an employee breaking out the moulds, when ready for that operation, must also move about the moulding floor from mould to mould. On a large floor this may involve considerable movement. Can the floor as a whole be said to be a means of access or is it as a whole a place at which the person is to work? In my opinion, it cannot. As the contrast for which the section calls is between the place at which a job of work is to be performed and the means of access to that place, it follows, in my opinion, that for the purpose of applying this section, it is necessary to determine what was the job of work currently to be performed. The area over which the employee will reasonably be expected to range in the performance of that job of work will, in my opinion, be the place at which he is to work within the meaning and for the purpose of the application of s. 40. Having thus delineated the place at which he is to work, the question whether or not means of access have been provided to that place, and if so, whether that means of access is safe so far as is reasonably practicable can be resolved. These are of course all questions of fact to be decided under proper direction as to the requirements of the section. But the question whether there is any evidence on which a view adverse to a defendant can reasonably be entertained is a question of law: indeed that is the question of law in this appeal.

[29]

But it seems to me that for the purposes of the section one is not concerned to ask these questions. The section in the plainest terms fastens upon "every place at which any person has at any time to work". I am not prepared to whittle down the generality of "every place", or the generality of "any time", for I find in the Act no warrant for doing so. In ordinary language a place at which, in a factory, a man has to work at any time is the space that at that time he occupies as he works. Lord Greene in Hopwood's Case [1] referred to suggestions that had been made to show that that sort of construction can be reduced to an absurdity, and undoubtedly it can. His Lordship said that the case had been put of a man at his work having to move a foot or two in one direction in order to pick something up and move it a little way, and his solution was to regard separately each particular "branch" of the man's work and by so doing to exclude "movements taken while doing one operation or one set of operations". He did not regard the word "branch" as quite satisfactory, but thought that what he had said made his meaning reasonably clear. When one reads his language in the light of the illustration to which it was directed it is, I think, reasonably clear that by "branch" he meant the particular task of the moment, and was intending to concede that the place of such a task may of course extend, because of the movements involved in the operation or the set of operations that comprises the task, beyond the space that the man's body would occupy if it were immobile, and that therefore those movements cannot be regarded as making use of a means of access to which the section applies. He would have agreed, I imagine, in the decision in Dorman, Long & Co. Ltd. v. Hillier [2] , where a worker had to remove four corrugated iron sheets from a roof, and it was held that a step on to one of the sheets while the worker was passing down another after its removal was a step not upon a means of access but upon a part of the place where the work was being done; for, as Lord Goddard C.J. remarked, it would be "too artificial to say that there were different branches of work according to which sheet he was removing at any particular moment" [1] .

[52]

To say that any issue which is for the court and not for the jury to decide is, or has become, a question of law rather than a question of fact is the customary explanation of this division of functions. To my mind this really describes a conclusion of law rather than the basis for that conclusion. That is because asking what are the essentials of a finding of fact rather than a decision of law is I think to chase a distinction which is logically elusive. And it is not more easily captured by speaking of a mixed question of law and fact or a question of mixed law and fact. These expressions are well known and convenient, even if sometimes they be used unscientifically. The former certainly has a long and respectable lineage, for Lord Mansfield in 1786 spoke of a "mixed proposition of law and fact": Johnstone v. Sutton [1] ; and Lord Macnaghten in 1901 used the words "mixed question of fact and law": Hoddinott v. Newton, Chambers & Co. Ltd. [2] . The Privy Council has spoken of "a question of mixed fact and law": Felix v. General Dental Council [3] . And in this Court we recently had occasion to consider and apply the phrase "a question of mixed law and fact": Da Costa v. The Queen [4] . In the present case I can avoid going into the refinements and distinctions of this much discussed topic. These are revealed in the thoughtful and learned articles in the Harvard Law Review and by Mr. Wilson's article in 26 Modern Law Review (1963), 609, where they are mentioned. It is I think enough in this case to follow statements in leading cases in which the classification has been applied. The question then seems to me to be simply whether his Honour's conclusion that the place here was not a means of access was correct. If it was, there is no case for a new trial. If it was not and the place was a means of access, then there must be a new trial but not to decide whether it was a means of access. That was for the court. The jury could only be asked to say whether it was as safe as reasonably practicable. I hope to make plain now why I take this approach to the question.

[62]

The work which the plaintiff had to do and on which he was engaged at the time of the accident was to take clay in a barrow to the couplings between each of the train of "buggies", as they were called, meaning I assume bogies, standing on a railway line beside the factory floor, and there put clay upon the couplings. Having put clay on one coupling, the plaintiff would move his barrow some twelve feet to the next to put clay upon it. I cannot see this work as a series of separate tasks to be performed at separate places twelve feet apart. I cannot accept the proposition that each time the plaintiff moved, pushing his barrow from one coupling to the next, he was using a means of access to a new place where he had to work. It seems to me that he was throughout engaged on a single task, putting clay on the couplings, to be carried out at one place of work. The Act clearly contemplates that a means of access to the place at which the worker has to work is something separate from that place. As an abstract proposition the place of a man's work at one time may be the means of access to another place where he has to work at another time. I understand that, but I cannot think that it can be said of this case. Originally a means of access to a place ordinarily meant I suppose some thing, like a ladder, a staircase, a gangplank, by which the worker got to his work-place. Doubtless it can be a passageway or a particular part of the factory floor which he must traverse to get to his work. But it must be identifiable as a place distinct from the place where he has to work. In the Court of Appeal it was apparently thought that, because the object to be attained by the work the plaintiff was employed to do was that the couplings would be covered with clay, therefore his bringing clay to a coupling, for the purpose of putting it on it, was an ancillary or subsidiary operation. Doubtless it is necessary, in some contexts and for some purposes, to consider what is "the main substantial work which a person is employed to do" and whether "one part of the employment is merely subsidiary or incidental to another part which is the main or substantial part": I take those phrases from the speech of Lord Morris in J. & F. Stone Lighting & Radio Ltd. v. Haygarth [1] . But once the plaintiff had arrived at the train with his barrow-load of clay the work of putting clay on the couplings necessarily involved taking his clay from one coupling to the next. He had to do this as part of his work. I am unable to accept the idea that he had two tasks, one ancillary to the other: and I do not think it reasonable to say that he had as many separate tasks as there were bogies. In moving along the train he was not going each time to a new place where he had to work or to a new branch of his work. He was all the time working at the place where he had to work at the work that he had to do there. It was work which involved, as indeed most work does, more than one operation; but it was all "one set of operations", to use a phrase Lord Greene M.R. used in Hopwood v. Rolls Royce Ltd. [2] .

[65]

In reading the judgments in recent cases in the United Kingdom which bear upon this topic, it is important to notice the distinction between s. 29 (1) of the Factories Act, 1961 U.K. and the New South Wales section applicable in this case. The New South Wales provision - s. 40 of the Factories, Shops and Industries Act, 1962 - is derived from an older model. It is restricted to the safety of means of access to the work-place and says nothing as to the safety of the work-place itself. Provided this be borne in mind, some of the British cases are helpful as illustrations of the effect of the provision about means of access: but none of them compels us to a conclusion in this case. Each depends upon its own facts and the facts of one case cannot by a process of analogical reasoning be used to determine the meaning of the statute. Therefore I say only that the decision of the Court of Appeal in Taylor v. Coalite Oils & Chemicals Ltd. [1] , is instructive because of its recognition that the same place cannot be both a plaintiff's place of work and his means of access thereto at the same time. This does not mean that the spatial limits of the means of access to the place where a person has to work must be precisely ascertainable. Nor does it follow that that place itself must be ascertainable and definable by metes and bounds. Both the means of access and the place of work to which the Act refers are in a factory. The place of work must be a part of the factory premises. Descriptions of a place by reference to activities carried on there have proved troublesome when a precise localization of the activities is necessary in order to ascertain the bounds and limits of the place. Powell v. Kempton Park Racecourse Co. Ltd. [2] , is a classic illustration of the difficulty. But that problem is not involved in the question in this case. The question is simply whether when the plaintiff was hurt as he alleged he was already at a place where he had to work or was only gaining access thereto. I think that Collins J., the trial judge, was right in holding he was already there and in holding that he was not using a "means of access" within the meaning of the Act. That being so, I consider that there is no issue which could properly have been submitted or which could now properly be submitted to a jury. I would therefore allow the appeal.

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