Dairy Farmers Co-operative Ltd v Azar

High Court of Australia|1989-02-10|Before: Gaudron JJ, Clarke J, Kirby P, McHugh J

High Court of Australia Brennan, Deane, Dawson, Toohey and Gaudron JJ. Dairy Farmers Co-operative Ltd v Azar [1990] HCA 63

The Court delivered the following written judgment: -

Sept. 5 Brennan, Deane, Dawson, Toohey and Gaudron JJ.

The ambit of the proceedings before this Court is made clear by the grounds of appeal which read:

2.1 That the Court of Appeal was in error in holding that Section 27 of the New South Wales Factories Shops and Industries Act, 1962 imposed an obligation upon the Appellant to securely fence the bottles being moved by the crating machine in the course of its operation.

2.2 That the Court of Appeal was in error in finding that upon the proper construction of Section 27 of the said Act the bottles were dangerous parts of the crating machine.

2.3 That the Court of Appeal was in error in not finding that there is a distinction between the bottles being moved in the crating machine and the parts of the machine and that the obligation to fence imposed by Section 27 of the said Act is only to fence dangerous parts of the machine.

2.4 That the Court of Appeal was in error in its statement and application of the principles expounded in the decision of this Honourable Court in Mummery v Irvings Pty. Limited (96 C.L.R. 99).

The facts fall within a narrow compass; we take this recital largely from the judgments of Slattery C.J. at C.L. at first instance and of Clarke J.A. in the Court of Appeal. At about 6.15 p.m. on 3 April 1981 the respondent was working on a machine known as a "Graham Enoch pneumatically operated 60 head milk bottle crater". The dimensions of the machine were 2 m. in length, 1.2 m. in depth and 2 m. in height. Gripper heads of the machine picked up full bottles of milk by the tops and lowered the bottles into plastic crates which had been moved by conveyor belt, three at a time, to a position where the bottles could be loaded into them. The action of the gripper heads was an automatic and continuous process, the machine being activated and stopped by a button on a box. Just before the respondent's accident, some bottles had been smashed on a bottle filling machine which was only a short distance from the bottle crater. The former was stopped to allow clearing up, then restarted. The bottle filling machine and the bottle crater were both operating. The respondent then tried to remove broken glass from a crate on the bottle crater but he was not quick enough and his hand was crushed between the bottom of a descending bottle and the broken glass in the bottom of the crate. The usual practice, not surprisingly, was to switch off the machine before removing broken glass in such a situation. The respondent's claim for damages for negligence and for breach of statutory duty failed at first instance. The claim in negligence was not pursued but the claim for breach of statutory duty succeeded on appeal; it is this claim which is now challenged.

The appellant accepted that the gripper heads were not securely fenced at the time of the accident. Section 27(1) of the Factories, Shops and Industries Act 1962 N.S.W. ("the Act") obliges the occupier of a factory to "securely fence all dangerous parts of the machinery therein". The point argued was whether s. 27(1) imposed on the appellant an obligation to fence the gripper heads. By majority (Kirby P. and Clarke J.A., McHugh J.A. dissenting), the Court of Appeal held that there was such an obligation: Azar v. Dairy Farmers Co-operative Ltd. [1] . Oversimplified somewhat, the appellant's argument was that there was nothing dangerous about the gripper heads. Any danger that existed was only because of the risk of injury to an employee who placed his hand between descending milk bottles, which were held by the gripper heads, and the bottom of the crate. In other words, there was nothing dangerous about the part itself.

That argument did not find favour in the Court of Appeal. The approach of Clarke J.A., with whom Kirby P. agreed, is encapsulated in the following passage from his Honour's judgment [2] :

the gripper heads created no danger whilst stationary but once the machine was operated the action of the heads in grasping the bottles and lowering them into the crate had the effect of creating a closing gap between the bottles and the crate, or any broken glass left in the crate. If it is proper to regard that closing gap as a dangerous situation then as a matter of logic that situation was created by the action of the gripper heads. In the normal operation of the machine they lifted the bottles and lowered them into the crate and, accordingly, should be regarded as the cause of the dangerous situation. 1. (1989) 15 N.S.W.L.R., at p. 658.

Furthermore, Clarke J.A. rejected [3] the argument that the decision of this Court in Mummery v. Irvings Pty. Ltd. [4] dictated a contrary conclusion. It was in this respect that McHugh J.A. dissented, holding that the ratio decidendi of Mummery is that "the machine must be guarded so as to prevent danger from its parts but not from its general operation" [5] . McHugh J.A. concluded:

Moreover, in terms the obligation is to fence the part, not the object. If the gripper heads were dangerous, the employer's obligation was to fence them. But it was not an obligation to fence the machine or the bottles or the crate. 1. (1989) 15 N.S.W.L.R., at pp. 658-659. 2. (1956) 96 C.L.R. 99. 3. (1989) 15 N.S.W.L.R., at p. 654.

This Court was referred by counsel to a number of decisions, Australian and English, in which the scope of the statutory obligation to fence dangerous machinery was explored. It will be necessary to refer to some of these cases, including Mummery, but the starting point must be the language of s. 27(1) itself. Counsel approached the statutory provision in question by reference to whether the gripper heads were or were not dangerous. This inevitably led to a debate as to whether the gripper heads were dangerous in themselves, or dangerous only when, while bottles were being lowered into a crate, an employee tried to remove something from the crate. That debate tended to view s. 27(1) as if it read "securely fence all dangerous parts of the machines therein". So read, it may be necessary to identify a particular part of a machine, for instance, the gripper heads, as dangerous. But it should be noted that s. 27(1) is directed to "the machinery" in a factory by way of general description, so that any part of that machinery which is dangerous, be it a part of a machine or the machine itself, must be fenced. If that be the correct approach to the statutory provision, it is arguable that the milk bottle crater was dangerous because of the risk of injury to anyone placing a hand below a descending milk bottle, hence it was necessary to fence the crater so as to prevent that happening. We shall return to this aspect later in these reasons.

Before this Court the appellant did not challenge the meaning attributed to dangerous in s. 27(1) by Clarke J.A., in the Court of Appeal, when he said [6] :

It is well settled that a part of the machinery is dangerous if in the ordinary course of human affairs danger may be reasonably anticipated from the use of that part without protection. For this test Clarke J.A. drew on the remarks of Dixon C.J. in Dunlop Rubber Australia Ltd. v. Buckley [7] . Counsel for the respondent was content to accept the test propounded by Clarke J.A. and to rely upon the judgment of Dixon C.J. in Buckley . It is enough, for the disposition of this appeal, to indorse the test enunciated by Clarke J.A., supported as it is by Buckley [8] , and by the earlier decision of Cofield v. Waterloo Case Co. Ltd. [9] . We would add only that in Cofield and in Buckley this Court approved the following statement by Wills J. in Hindle v. Birtwistle [10] : In considering whether machinery is dangerous, the contingency of carelessness on the part of the workman in charge of it, and the frequency with which that contingency is likely to arise, are matters that must be taken into consideration. 1. (1989) 15 N.S.W.L.R., at pp. 656-657. 2. (1952) 87 C.L.R. 313, at pp. 320-321. 3. (1952) 87 C.L.R., at pp. 319-320, 327-328, 330-331, 334. 4. (1924) 34 C.L.R. 363, at pp. 367-368, 373, 380. 5. [1897] 1 Q.B. 192, at p. 195.

The appellant relied strongly upon the decision of this Court in Mummery and the decision of the House of Lords in Nicholls v. F. Austin (Leyton) Ltd. [11] in support of its argument that the obligation created by s. 27(1) of the Act was to fence only that part of a machine that was itself dangerous, not the whole machine and not materials or objects in the machine. It is convenient to look first at Nicholls, the earlier of the two decisions.

In Nicholls, the obligation under s. 14(1) of the Factories Act 1937 U.K. was that "Every dangerous part of any machinery shall be securely fenced". The appellant in that case was injured while operating a circular saw belonging to the respondent, her employer, when a piece of wood apparently flew out of the machine. The machine was fenced so as to comply with the Woodworking Machinery Regulations 1922 (U.K.), which were preserved by the Factories Act. In the words of Lord Macmillan [12] , the question of importance in the case was:

whether the statutory duty imposed by s. 14 of the Act of 1937 to fence securely every dangerous part of any machinery is fulfilled when the dangerous part is so fenced as to prevent the operator from coming into contact with it; or whether the duty also extends to fencing the dangerous part so as to prevent any part of the material on which the machine is working from flying off and striking the operator. The House of Lords held that the respondent was not in breach of any statutory obligation since the requirement that every dangerous part of the machinery be securely fenced was an obligation to guard against contact with any dangerous part of a machine and not to guard against dangerous materials or articles being ejected from the machine while in motion. In this respect, the headnote to the report reflects the language of Lord Thankerton [13] . 1. [1946] A.C., at p. 501. 2. [1946] A.C., at p. 499.

Lord Thankerton's conclusion was reached in the light of the relevant statutory provision, s. 14(1), which his Lordship considered dealt with "fencing of dangerous parts of any machine, and not with dangerous machines, whereas the dangerous materials or articles do not necessarily emanate from a dangerous part of a machine" [14] . Lord Thankerton also referred to other aspects of s. 14 that are to some extent reflected in s. 27(1) of the Act. He attached importance to the power in s. 14 to make regulations "requiring the fencing of materials or articles which are dangerous while in motion in the machine", under which no regulations had been made at the relevant time. This power was in terms comparable to s. 31(2) of the Act. The New South Wales provision reads:

The regulations may, as respects any type of machine in factories or any process in which machines are used in factories, require the fencing of materials or articles while in motion in the machine and may regulate the manner of such fencing. The existence of such a regulation-making power pointed, in his Lordship's view, to the unlikelihood that s. 14(1) was concerned to prevent the ejectment of materials. 1. [1946] A.C., at pp. 499-500.

The other members of the House did not approach the matter in precisely the same way as Lord Thankerton. Lord Macmillan saw the obligation imposed by the statute as one "so to screen or shield the dangerous part as to prevent the body of the operator from coming into contact with it" [15] . Lord Wright placed particular emphasis on the regulation-making power in s. 14. Lord Simonds considered that the words "Every dangerous part" in s. 14(1) referred "only to parts which are directly dangerous by reason that the part itself is liable to cause injury" [16] . Lord Uthwatt rejected the view that the statutory obligation was "to fence the machine, viewed as a single operating unit, so as to avoid the possibility of danger arising to the worker from its operation" [17] .

[1946] A.C., at p. 501. 2. [1946] A.C., at p. 504. 3. [1946] A.C., at p. 506.

There are some differences between the legislative scheme under consideration in Nicholls and that with which we are concerned in the present appeal. But the crux of the decision in Nicholls is the emphasis placed on "dangerous parts of the machine" and the perceived obligation to prevent the operator of machinery or others coming into bodily contact with a dangerous part of the machine. Hence the emphasis placed on the question whether the obligation to fence imposed by s. 14(1) extended beyond "direct" injury by contact with the machine to "indirect" injury from something flying off the machine [18] . This is not surprising, given the circumstances of the case. The decision in Nicholls focuses on the particular part of the machine that caused injury, rather than on dangerous parts of the machinery. Indeed, it appears to draw no distinction between "machine" and "machinery". In Sparrow v. Fairey Aviation Co. Ltd. [19] , Lord Reid ventured the opinion that the decision in Nicholls had ignored relevant legislative history. However, he concluded:

But the recent decision in Close v. Steel Company of Wales Ltd. [20] appears to me to establish beyond question that section 14 only requires a dangerous part of a machine to be fenced for the purpose of preventing a worker from coming in contact with it. See also Lord MacDermott [21] . It is significant that Nicholls was distinguished in Wearing v. Pirelli Ltd. [22] and was thought to present no obstacle to a successful claim in Johnson v. F.E. Callow Ltd. [23] , to both of which decisions reference will be made later in these reasons. 1. [1946] A.C., at pp. 498, 504, 506. 2. [1964] A.C. 1019, at pp. 1032-1033. 3. [1962] A.C. 367. 4. [1964] A.C., at pp. 1046-1048. 5. [1977] 1 W.L.R. 48; [1977] 1 All E.R. 339. 6. [1971] A.C. 335.

Mummery concerned an action for negligence brought by a visitor to the respondent's building where a power-driven circular saw was being operated. When the appellant was some fifteen feet from the circular saw, he was struck in the face by a flying piece of wood. His claim was based in negligence and also breach of the duty imposed by the Factories and Shops Act 1928 Vict., s. 59(1) of which required every occupier of a factory to provide guards for "all dangerous parts of the machinery of the factory". The language is, of course, very close to that of s. 27(1) of the Act. The headnote to Mummery includes the following:

Held: (1) by Dixon C.J., Webb, Fullagar and Taylor JJ., McTiernan J. expressing no opinion, that the obligation imposed by s. 59(1) is to provide guards for "dangerous parts" of the machinery and not to provide guards against dangerous materials or articles ejected from a machine in motion.

Nicholls v. F. Austin (Leyton) Ltd. [24] , considered.

It is true that, in their joint judgment, Dixon C.J., Webb, Fullagar and Taylor JJ. referred at some length to the judgments in Nicholls, with apparent approval. But they did not, in express words, hold as the headnote would suggest. And it is of importance to note that when contrasting the appellant's statement of claim, which alleged that the circular saw was a dangerous machine and that the respondent had failed in its statutory duty of providing an adequate guard to the machine, with the obligation created by s. 59(1) to provide guards for "all dangerous parts of the machinery of the factory", their Honours commented [25] :

The distinction, as will appear, is not without considerable significance. It is a distinction to which, however, little, if any, attention appears to have been paid at the trial but this is of little moment if, as the learned trial judge thought, there was no evidence to establish either that the machine was dangerous or that it was without a proper or sufficient guard. The decision in Mummery turned on other questions as well as that of statutory construction. Primarily it was concerned with the scope of the appellant's statement of claim, the fact that the appellant was an invitee rather than an employee and the operation of the doctrine of res ipsa loquitur in the circumstances. Mummery must be taken to have given tacit approval to the decision in Nicholls but it went no further in that direction. That approval does little more than emphasize that the purpose of the relevant statutory obligation was to protect persons against bodily contact with any dangerous part of a machine rather than to ensure that no one was injured by the ejectment of materials. 1. (1956) 96 C.L.R., at p. 105.

In Eaves v. Morris Motors Ltd. [26] Holroyd Pearce L.J. reviewed the English authorities as they then stood and concluded [27] :

Now dangerous machinery is only required by section 14 to be fenced against danger of a particular and limited kind, namely, danger from workmen coming into contact with the machine. There is no protection under section 14 against a class of obvious perils caused by dangerous machinery, namely, perils which arise from a dangerous machine ejecting at the worker pieces of the material or even pieces of the machinery itself. Thus, there is now left a gap which neither logic nor common sense appears to justify. 1. [1961] 2 Q.B. 385. 2. [1961] 2 Q.B., at pp. 396-397.

Whether there is a gap of the nature to which Holroyd Pearce L.J. refers is a question with which it is unnecessary to deal in this appeal. We are not concerned with perils arising from material ejected from a machine which may well be dealt with in provisions other than those relating to the fencing of machinery itself or of its parts. A reluctance to extend the earlier decisions appears from two later decisions of the House of Lords, Wearing [28] and Johnson [29] .

[1977] 1 W.L.R. 48; [1977] 1 All E.R. 339. 2. [1971] A.C. 335.

Wearing concerned s. 14(1) of the Factories Act 1961 U.K. which, like s. 14(1) of the 1937 statute, required "Every dangerous part of any machinery [to] be securely fenced". As appears from the headnote, a power-operated machine for moulding tyres at the defendant's factory included a horizontal metal drum two feet wide, revolving towards the operator. Before it was set in motion, a sheet of rubber was fed onto it, closely encasing it and forming a skirt at each end. A beading of metal and rubber, forming a hoop about an inch thick, was then mechanically imposed over the sheeting at each end. While the drum was in motion, the skirt had to be turned back over the beading so as to adhere to the tacky surface of the sheet. The machine was designed to effect that result automatically but the operator had to help the folding with a tool consisting of a wheel with a milled edge attached to a five inch handle. While the plaintiff was performing that operation, the contact between the wheel and the material jerked his hand so that his wrist struck the rubber coating on the drum or the beading, fracturing a bone. The House of Lords upheld a decision of the Court of Appeal reversing the trial judge's dismissal of the action. Viscount Dilhorne referred to Nicholls and to later English decisions, saying [30] :

The facts of those cases were very different from those of this and I do not find them of any assistance. Where an injury is caused by material, it is not caused by a dangerous part of machinery but where a dangerous part of the machinery causes an injury by bringing a person into contact with material or something that is not part of the machine, liability for breach of the statutory duty is established. Lord Edmund-Davies referred to the same decisions, commenting [31] : But such cases are wholly dissimilar from the present case where it is nonetheless accurate to describe the "dangerous part" of the machinery as having itself caused injury even although it was coated with innocuous material which in no way increased the risk, nor caused the accident, nor aggravated the workman's injury. Indeed, looking at the whole incident in a practical way, as respondent's counsel very properly invited your Lordships to do, the plaintiff was truly injured by the revolving drum itself, and its fabric covering was an irrelevance. 1. [1977] 1 W.L.R., at p. 52; [1977] 1 All E.R., at p. 342. 2. [1977] 1 W.L.R., at p. 57; [1977] 1 All E.R., at p. 346.

In Johnson, the respondent was working at a lathe. When the lathe was machining stainless steel components, as it was on this occasion, the job had to be lubricated and cooled; there was an automatic cooling system to provide oil coolant to the working face. Instead of using the automatic system, the respondent used a plastic household dispenser, referred to as a "squeezy", to squirt coolant into the interior of the casting on which he was working. While doing so, his hand was caught between the revolving casting and the slowly moving boring bar of the lathe and he was injured. The respondent claimed damages for, inter alia, breach of the appellant's statutory duty under s. 14(1) of the Factories Act 1961 U.K.. The claim failed at first instance but succeeded on appeal to the Court of Appeal, though the respondent was held contributorily negligent to the extent of one-third. An appeal to the House of Lords was dismissed.

The judgments in Johnson deal with a number of issues but, for the purposes of the present appeal, it is enough to look only at the question whether a part of machinery was dangerous within s. 14(1). In that regard there is a useful summary of the judgment of Lord Hailsham of St Marylebone L.C. (with whom Lords Hodson and Gardiner expressly agreed and Lord Donovan impliedly agreed) in the portion of the headnote [32] which now follows:

That in considering whether a part of machinery was dangerous within the meaning of section 14 one had to have regard to the operation of the part while the machine was doing its ordinary work and not when it was stationary ; that the boring bar, though moving only imperceptibly, had been part of the machinery within the meaning of section 14 ; that a part of machinery could, even if stationary, be dangerous because of its juxtaposition to another part of the machine or to a moving workpiece or to the material in the machine notwithstanding that in isolation or when the machine was not in use it would not be dangerous ; and that, accordingly, the boring bar had been a dangerous part of the machinery requiring to be fenced. 1. [1971] A.C., at pp. 336-337.

Referring to the gap in protection spoken of by Holroyd Pearce L.J. in Eaves and to the decisions in Close and Nicholls, Lord Hailsham observed [33] :

It is however too late for the courts to close the gap. It has however to be said that I for one would be slow to enlarge the gap or to extend the ambit of the criticised decisions beyond the limits required by the facts of the cases concerned and the reasoning of the judgments in them. 1. [1971] A.C., at p. 343.

We do not regard the decision in either Nicholls or Mummery as dictating the outcome of the present appeal. Each involved the ejectment of material from a machine and a complete absence of contact between the injured person and the machine. So too did Close, though in that case parts of the machine itself were ejected. There is a marked distinction between such a situation and one where injury results from contact by the injured person with some covering on the machine, as in Wearing, or because of a "nip" caused by a moving part in juxtaposition with a stationary part, as in Johnson, or because a person is caught by something held by the machine, as in the present case. In these latter situations, undue concentration on a particular part of the machine tends not to afford a useful answer to the question whether dangerous parts of the machinery in the factory have been securely fenced.

While the present respondent did not come directly into contact with the bottle crater, he was injured in a situation where gripper heads holding bottles and lowering them into crates created a danger for anyone attempting to remove material from the bottom of a crate. His injury was not "indirect" in the sense canvassed in Nicholls; it was a direct result of the operation of the gripper heads in the particular circumstances.

If the matter were approached on the basis that it is governed by the current state of the English authorities, it should be concluded that, once the gripper heads were in motion, they were dangerous in that they closed the gap that would otherwise exist at the bottom of a crate. The gripper heads were thereby a dangerous part of the bottle crater and the appellant was obliged to fence them against the danger they created. This was not an obligation to fence the machine so as to prevent danger from its general operation. It was an obligation to fence the machine so as to prevent injury from the gripper heads while in motion. In this respect, it is not to the point to say that the respondent's injuries were caused by the milk bottle rather than a gripper head. The bottle was held by a gripper head and it was the action of the gripper head that caused the respondent's hand to be jammed.

Notwithstanding this necessary review of the authorities, it is preferable to approach the matter in terms of the plain meaning of s. 27(1) itself. This requires the Court to answer the question - was there a dangerous part of the machinery in the factory, be it a particular part of a machine or the machine itself? If there was, the appellant was obliged to securely fence so much of the machinery as was dangerous. The answer to the question is that the crater was dangerous in that a person might place his or her hand between a descending bottle and the bottom of the crate and thereby sustain injury. The appellant failed to securely fence the crater so as to prevent such an occurrence. It was not obliged to fence the entire crater; its obligation was to fence the dangerous part of the machinery, that is, to fence the crater sufficiently to prevent anyone from being able to do what the respondent did on this occasion.

It should be said, in conclusion, that the appellant did not argue that the injury to the respondent's hand was wholly unforeseeable. As Clarke J.A. observed [34] :

The evidence in the case, however, supported the conclusion that not only was it foreseeable that there might be broken glass in the bottom of crates which were conveyed to the critical point but that the [respondent's] job was to remove that broken glass. Accordingly, the [appellant] should be taken to have been aware of the possibility, or even probability, of broken glass being in the bottom of the crates at the relevant times. 1. (1989) 15 N.S.W.L.R., at p. 660.

The approach we have taken to the construction of s. 27(1) was not the approach taken to the case in the courts below but, had that approach been taken, no further evidence could have affected the result. If the absence of consideration of this approach in the courts below were a barrier to its consideration in this Court, it would be open to this Court to revoke special leave and to allow the judgment of the Court of Appeal to stand. However, we think the better course is to dismiss the appeal for the reasons stated in this judgment.

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