Davies v Adelaide Chemical and Fertilizer Company Limited [1946] HCA 47

Davies v Adelaide Chemical and Fertilizer Company Limited [1946] HCA 47 - HCA 1946 case summary — Zoe

[10]

The plaintiff, William David Davies, was employed for many years at the factory of the defendant, the Adelaide Chemical and Fertilizer Co. Ltd., as a greaser, his duty being to lubricate various kinds of machinery. One of the machines consisted of a conveyer belt supported by rollers on which it moved slowly. The grease points on the rollers were accessible from one side only of the belt, and the plaintiff had to reach to some extent under the belt to lubri- cate some of the points. It was his regular practice over a number of years to grease the rollers while the belt was in motion, which he had done without injury; this was not highly dangerous, but it involved some risk, and the plaintiff was aware of the risk. During that time the then works manager, the engineer and the foreman all had ample opportunity of seeing him at this work and there is direct evidence that the engineer and foreman had often seen him greasing the rollers in motion. None of these officers was called to say that it was not conceived to be his duty so to act or, at all events, proper practice on his part sanctioned by them. The now factory manager agreed in his cross-examination that after working there for some years the plaintiff would hestitate to ask that some part of the plant should be stopped and that he would gradually get round to the state of mind that he would run a slight risk rather than have it stopped. In the course of a letter to a medical expert informing him of the facts of the case, the defendant's solicitors said that the plaintiff was employed by the defendant as a greaser " and, in parti- cular, it is his work to grease the rollers of a conveyer belt system while the belt was actually in operation." The plaintiff was never given any instruction to have the machine stopped while he was doing the greasing, but he knew he could have it stopped for this purpose. On the occasion in question, he was reaching under the moving belt to lubricate a roller when his arm was caught between the belt and the roller, and he suffered a slight injury which later resulted in dermatitis.

[52]

horizontal ; the two outside rollers are inclined upward from it, so that the belt may run with a concave transverse section in order better to contain the material it carries. For lubrication each section of three rollers had four grease points. Of the four grease points two were placed on the bearings at the respective ends of the hori- zontal roller and at the inner ends of the inclined rollers and therefore under the belt. The grease points carried nipples to which the greaser would attach the connection of the grease gun manually. To do this it is necessary for him to reach to some degree under the belt. But for some distance on one side of the belt access to the inner grease point is more or less obstructed by a staging that had been erected. Here in order to attach the connection of the grease gun to the nipple the greaser had to reach under the belt from the other side. The nipple on the bearing nearer the obstructed side of the conveyer belt is placed on the side of the bearing towards which the belt travels, so that a hand and arm stretched out to the nipple might by contact with the belt be drawn in between the belt and the roller. Unless all reasonable prospect be excluded of a greaser lubricating the belt while moving, this arrangement involves a danger and brings the material parts of the machinery under the statutory requirement that they should be safeguarded and the safeguards maintained while the machinery is in motion. His Honour held that the nipple was part of the machinery within the enactment and that that part was dangerous for any person greasing the bearing while the belt was travelling. This conclusion is amply supported by Chasteney v. Michael Nairn & Oo. Ltd. (1), and is not now disputed. But it is important to bear in mind why the machinery is considered dangerous and must be so safeguarded. It is lest a greaser should be hurt in lubricating the machine while in motion. The plaintiff was the defendant's greaser and the injury of which he complains was sustained in lubricating the machine while in motion. As he sought to attach the connection of the grease gun to the further nipple his arm was drawn in between the roller and the belt. The fault on his part that has barred his recovery for the injury is that he did thus grease the machinery while in motion, instead of stopping it before lubricating the points under the belt or, at all events, those on the further side.

[55]

The plaintiff who for very many years had acted as the defendant's greaser, regularly lubricated the rollers of the conveyer belts while they were in operation. It was his common practice to do so and everyone about the plant was aware of it. No independent evidence of his having been seen greasing the further nipples from the unob- structed side of the belt was given, but a vehement inference arises that he openly did so. The conveyer belts had formed part of the plant for some seven or eight years before the accident, and the staging had obstructed one side of the particular belt for some four years. During that time the then works manager, the engineer and the foreman all had ample opportunity of seeing him at this work and there is direct evidence that the engineer and foreman had often seen him greasing the rollers in motion. None of these officers was called to say that it was not conceived to be his duty so 'to act or, at all events, proper practice on his part sanctioned by them. The now factory manager agreed in his cross-examination that after working there for some years the plaintiff would hestitate to ask that some part of the plant should be stopped and that he would gradually get round to the state of mind that he would run a slight risk rather than have it stopped. In the course of a letter to a medical expert informing him of the facts of the case, the defendant's solicitors said that the plaintiff was employed by the defendant as a greaser " and, in particular, it is his work to grease the rollers of a conveyer belt system while the belt was actually in operation." This, I think, is an accurate statement of the facts, as well as being an admission not lightly to be set aside. It is confirmed by the fact that, when he returned to work after recovering from his more immediate injuries, the plaintiff for a year or more continued the same practice of greasing the conveyer belt rollers while in motion. Neither before or after the accident was he ever instructed or advised not to do so. In fact, though the practice did involve some degree of risk, it was not highly dangerous and, as between stopping the belts or greasing them in motion, the inconvenience to the factory of stopping the belts might easily be regarded as outweighing the tisk. At all events, I think that in following such a practice at the time of the accident the plaintiff was not guilty of such negligence as to disentitle him to recover, because he was not acting contrary to any rule, instruction, advice or practice made, given or established by the defendant as his employer or in his own interest or for his own convenience but, on the contrary, was performing his duties according

[69]

In deciding this issue against the appellant the learned judge applied this standard, " Did he act or did he omit to do anything evincing a want of ordinary care?" It does not seem to me that the criterion expressed by these words is in substance the same as that laid down in Caswell's Case (1); although I should think that it was that-criterion which his Honour intended to apply. In Caswell's Case (2) Lord Atkin observed that "a different degree of care may well be expected from a workman in a factory or a mine from that which might be taken by an ordinary man not exposed continually to the noise, strain, and manifold risks of factory or mine." The criterion of what would be such a want of care on the part of the workman that he ought to be adjudged guilty of contributory negligence is contained in two passages in the judgment of Lawrence J. in Flower v. Ebbw Vale Steel Iron & Coal Co. Ltd. (3), which are repeatedly quoted and approved in Caswell's Case (1) and there stated to be a valuable guide for the decision of the issue of con- tributory negligence in a case like the present one. Lawrence J. observed (4) that it is not true to say that the doctrine of contributory negligence "' demands of a workman in a factory a higher degree of care than an ordinary prudent workman in a factory would show." It is to be noticed that the word used is "' would" not " ought." Applying the criterion approved in Caswell's Case (1) the question here is whether the appellant by the exercise of that degree of care which an ordinary prudent workman would have shown in the circumstances would have avoided the result of the respondent's breach of statutory duty. In considering whether an ordinary prudent workman would have taken more care than the appellant, all the circumstances of work in the respondent's factory have to be taken into account, and it has to be borne in mind, as Lawrence J. said (5) " that it is not for every risky thing which a workman in a factory may do in his familiarity with the machinery that a plaintiff ought to be held guilty of contributory negligence." Lord Wright said in Caswell's Case (6): " What is all-important is to adapt the standard of what is negligence to the facts, and to give due regard to the actual conditions under which men work in a factory or mine, to the long hours and to the fatigue, to the slackening of attention

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which naturally comes from constant repetition of the same operation, to the noise and confusion in which the man works, to his pre- occupation in what he is actually doing at the cost perhaps of some inattention to his own safety." Mayo J. found that the appellant knew that he could have had the belt stopped for the purpose of lubricating at the point at which he was attempting to apply the grease gun when his hand was caught by the belt, if he had given a signal to the man in charge, and that he deliberately chose not to give the signal and to lubricate at that point although he knew it was risky to do so, and also the nature of the risk. But the evidence proves that the appellant was very familiar with all this machinery and that it had, been his practice for a number of years before the accident to grease at the point in question and at other comparable points while the belt was moving. This was the first time that his hand was caught in the belt. Having regard to his familiarity with this machinery and the fact that he had safely done this apparently tisky thing on many occasions, it was not necessarily contributory negligence on his part to do it on the occasion, when he met with the accident. In these circumstances, I think that the inference that he exhibited a lesser degree of care than an ordinary prudent workman in this factory would have shown cannot be supported. There is the evidence that he repeated this risky act, but there is no evidence that he was doing it in a negligent manner. The principle stated in the following passage in Weblin v. Ballard (1) is relevant here : - " It was next argued, that, as a matter of law, upon the facts proved and stated by the judge, the deceased was guilty of contri- butory negligence. The facts proved and stated by the judge, who had twice viewed the place, to use the judge's own words, were as follows : - ' The use of the ladder appeared by the evidence to have been so manifestly dangerous that every one who saw the ladder so used must have been aware of the danger.' This, it was argued by the defendant, proved that the deceased had been guilty of contri- butory negligence. We do not agree. The mere fact that the deceased knew that the work was manifestly dangerous of itself does not constitute contributory negligence."

At a glance

Court

Decision date

Before

Source

Judgment (78 paragraphs)