Bourke v Butterfield and Lewis Limited [1926] HCA 38

Bourke v Butterfield and Lewis Limited [1926] HCA 38 - HCA 1926 case summary — Zoe

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may merely be evidence of negligence in the person who commits the breach, or may itself give to the person injured a cause of action. If the statute is enacted for the benefit of the community at large the person injured is relegated to an action for negligence ; but if the statute is enacted for the benefit of a class, and the person injured be one of that class, the question of negligence, whether in the plaintiff or defendant, is immaterial. The only question is whether the plaintiff has sustained injury because of the breach of the statutory provisions. The statute we are considering comes within the second category, and the question that arises is whether the plaintiff comes within a class for whose benefit the statute was enacted. It is clear that the statute was made for the protection of employees in a factory, whether careful or negligent. Indeed, if there were no negligence, there would be little necessity for the fencing off of dangerous machinery. It is equally clear to us that the liability of the employer cannot be determined by inquiring as to whether the employee at the time of the accident was engaged in the performance of an act for the benefit of his employer or within the scope of his own employ- ment. In our opinion the provisions of the statute are intended for the protection of all who are lawfully within the factory in their capacity of employees. But did Parliament intend to extend that protection to every employee in every circumstance? We think not. In our opinion it would be unreasonable to attribute to Parliament an intention to impose upon the employer responsibility for an injury which the employee deliberately invites, whether by adopting the means of inflicting it, or by rejecting the means of avoiding it, or for an injury which has happened because the employee deliberately took an unnecessary risk not in the interests of the employer, but for his own purposes. It is not easy to frame an exact formula ; but it may be said that the employer is responsible for the negligence, but not for the misconduct, of his employee. Whether the conduct of an employee goes beyond mere thoughtlessness or want of care and amounts to misconduct is in every case a question of fact. In this case the answer of the jury to question 4 does not amount to a finding of misconduct, and in our opinion the facts would not justify such a finding. The plaintiff is therefore within the protection of the statute, and is entitled to his verdict.

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mean prevention of such ghastly calamities, for which money can never be a real compensation. With reference to the statutory _ obligation to fence dangerous machinery, I said (1) : - ' It is not out of place to draw the attention of the Legislature to the fact that the only penalty it has provided for the disregard of so essential a precaution for the preservation of human life is 'a penalty not exceeding ten pounds.' For wilful contumacy, perhaps after some dreadful accident, a further ten pounds a day at most may be exacted. Is that a real enforcement of sec. 33, having regard to the temptation of material interests ? That is, of course, the responsi- bility of Parliament, but, in fairness to Parliament itself and in justice to the helpless employees who are unnecessarily exposed to imminent risks, the occasion warrants the serious attention of the Legislature being drawn to the matter." The accident that maimed for life the unfortunate boy who is the present appellant occurred nearly twelve months after those observations. I venture with respect to press them once more upon the attention of the New South Wales Legislature. I would add a further suggestion. Inspectors have, it would seem, ample powers (secs. 9 and 70). In the event of a complaint being made by an inspector under sec. 35, it would probably lead to adequate protection being afforded in the given case, But there is apparently a gap in the administrative chain of security, and it might be advisable either by statute or regulation to prescribe it as a duty of every inspector to examine, and to report the results of his examination and inquiry, as to q compliance or non-compliance with factory provisions. __ As to the issue of law we have to determine, I feel no difficulty, when governing principles are ascertained and applied, in holding that the defence of contributory negligence is not available in an action based directly on sec. 33 of the Factories and Shops Act 1912. Campbell J. so directed the jury, and in my opinion he was right. In Cofield's Case (2) I thought it not essential, and therefore left it open for final decision. At the same time the necessary consideration of the nature and extent of the factory occupier's statutory duty _ towards his employees, as prescribed by the Act of 1912 at the peril

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statutory regulation (Williams v. Great Western Railway Co. (1)). There, however, as the ground of action is common law negligence, the common law defence of what is styled " contributory negligence " is available. But, as already shown, that is not because the " contributory negligence " necessarily breaks the chain of causation, for sometimes, as in The Bernina (2), it does not. Sometimes it does, as in The Paludina (3). But it cannot, merely because it is contributory negligence, break the chain of causation any more than if it were the co-operating negligence of the third person. The point to be borne in mind is that the defence is available even though the chain of causation is not broken, because, as Lord Watson says, the plaintiff has failed to take that care of himself which in the cireum- stances the common law requires of him and he must bear the - consequences. This I expressed in Cofield's Case (4) by saying that the defendant's responsibility is, in effect, shortened by the plaintiff's obligation to take care of himself. I would, however, make it clear that I do not base my opinion that the defence of " contributory negligence "' is inappropriate in the present case on the reason that negligence cannot be set off except against negligence. I explained in Symons v. Stacey (5) that " negligence" in the phrase " con- tributory negligence" does not always mean neglect of duty to another, but sometimes means neglect to take proper care of oneself. That obligation may be as appropriate in the case of a statutory duty as where the cause of action is pure negligence. The omission of that condition creates a disqualifi- cation in the plaintiff. But the reason I consider it inappropriate is that the statutory duty in this case is inconsistent with such a defence. Statutory duties of employers towards employees are various, and it depends entirely upon the extent of protection granted by the Legislature whether the employee is or is not freed from the common law obligation to do all that the ideal prudent citizen would do for his own safety, if he wishes to obtain redress against another whose want of care has caused him loss. For want of ability to express my reasons better, I quote what I

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The only question remaining is; " What is the criterion as to whether the occurrence was outside the sphere of employment ?" No doubt where, as Lord Macnaghten said in Reed v. Great Western Railway Co. (1), quoted by Lord Dunedin in Lancashire and Yorkshire Railway Co. v. Highley Q), an employee is engaged on a purpose of his own, and not in the execution of his duty or in the interest of his employer, he puts himself "outside the area of protection." But the circumstances of industry are so various that great difficulty nearly always arises in determining whether the employee at the crucial moment was acting within or beyond the sphere of his employment. The test as a legal proposition is simple : " Was he doing what he was employed to do, however improperly, or was he doing something altogether outside his employment ?" (See Garallan Coal Co. v. Anderson (3).) But as between employer and employee the method of approaching that question is all- important. In my opinion it depends on the way in which the terms of the employment are conveyed, and the proper criterion is as follows : How would the workman reasonably understand the terms of or the instructions in his employment ? To determine this, the ordinary process must be applied, thus : - (1) If those terms clearly, either expressly or by implication, limit the area of the employment as distinguished from merely regulating the workman's conduct within that area, then, if in fact the workman at the crucial moment was, in contravention of those terms, acting outside the area, the employer is not liable. In other words, if no person in the workman's situation, having regard to the terms of his contract of employment or to his instructions, could reasonably believe that at the moment of the accident he was in any way engaged in performing any of his duties as employee, then he was acting outside the sphere of his employment. (Garallan Co.'s Case (3); Wilsons and Clyde Coal Co. v. M'Ferrin (4).) (2) But if the terms of his contract or his instructions are, in relation to the employment, ambiguous to the 31, at p. 34, (3) (1926) 42 T.L.R. 747, at p. 748 ;

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for the defendant that such a provision for a penalty prevents the application of the ordinary right of action' of an employee for whose benefit the fence is prescribed if he be injured in consequence of the neglect to carry out the statutory duty to fence. This point is treated as settled by the decision of the Court of Appeal in Groves v. Wimborne (1). Given, then, an absolute statutory duty to fence, and right of action for injury due to the neglect of that duty, what right has any Court to annex a condition that there shall be no contributory negligence on the part of the plaintifi - a condition which the Legislature has not imposed either expressly or by necessary implication ? Professor Roscoe Pound in his Spirit of the Common Law, p. 48, aptly quoted by my brother saacs in Cofield v. Waterloo Case Co. (2), commented with good reason on the tendency of the Court "to read the doctrine of contributory negligence into statutes even where the Legislature has tried to get rid of it." But this is not even an action for negligence ; and what has contributory negligence to do with an action of which negligence is not the basis? There is no negligence to which the plaintiff can contribute, but a breach of a statutory duty to fence. As Rigby L.J. said in Groves vy. Wimborne (3), "the cause of action relied on in the present case has nothing to do with negligence." We are simply thrown back on the absolute statutory duty to fence ; and the duty is the same whether the injured lad is careless in his conduct or not. This position is established by Blenkinsop v. Ogden (4), where the proceeding was for the penalty, not an action by the injured person ; but the duty of the employer is the same in the action as in the proceeding for a penalty, Kennedy J. said: " It is to the interest of the State that the machinery should be safe for negligent as well as for careful people." It is true that in this case, as reported in the Law Reports (not so explicitly as reported in the Law Journal (5) or the Law Times (6)), Kennedy J. uttered some obiter dicta in favour of contributory negligence being a defence in an action; but it appears from the report of the argument that plaintiff's counsel admitted that in an action for damages the plaintifi's conduct would (1) (1898) 2 Q.B. 402. (4) (1898) 1 Q.B. 783.

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cases in which counsel generously throws away an argument that does not concern him in the immediate case - like a sop to Cerberus, which neither strengthens his jaws not causes loss to the giver. Another obiter dictum referred to by the learned Chief Justice of the Supreme Court in his judgment is that of Vaughan Williams L.J. in Groves v. Wimborne (1). The case of contributory negligence was not raised in the action for breach of duty to fence; but the Lord Justice, deciding that the doctrine of common employment is not applicable to injury by breach of an absolute duty imposed by statute to fence for the protection of employees, expressed his opinion that there were cases in which the defence of common employment would be available, saying : - ' No one would contend, if there were contributory negligence, that such negligence on the part of the plaintiff would not be an answer to a claim by him for damages in respect of an injury occasioned through the neglect of his master to perform the absolute statutory duty. Tt would be an answer for the reason that in fact the damage to the plaintiff would not be caused by the failure of the master to perform the absolute statutory duty, because it would not have happened but for that and something else, namely, the contributory negligence of the plaintiff." But this reference to contributory negligence was a mere digression in support, by analogy, of an argument not favoured by the other Lords Justices, that common employment would in some cases be an available defence. It is a good example of the danger incident to obiter dicta. But the final words of the statement point to the real working of the mind of the Lord Justice: he was thinking of the case where the injury is due to the act of the employee himself, not to the failure of the employer to fence - a case which is negatived here by finding 2. There are also obiter dicta to the same effect, by the King's Bench Division in Iles v, Abercarn Welsh Flannel Oo. (2), by Channell B. in Britton v. Great Western Cotton Co. (3); but they are obiter dicta only and do not bind us. On the other hand, the view taken by Wightman J. and Willes J. in Clarke v. Holmes (4)

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