"No person employed in a factory shall be allowed or

required to lift or carry by hand a greater mass than:

in the case of males over sixteen but under eighteen

in the case of females under sixteen years of age -

in the case of females over sixteen but under eighteen

in the case of females over eighteen years of age -

negligence the failure of the respondent to comply with s.36(1).

2. At the time she sustained her injury, the appellant was aged forty-seven years. There was a conflict of evidence about the weight of the box of golf ball cores. The evidence of the appellant was that the total weight of the box and its contents was 40.06 kilograms while the evidence of her helper, if accepted, would have established a weight of only 19.54 kilograms.

3. The appellant's claim was tried before a jury. The trial judge in his summing up charged the jury that "the weight of the load being lifted by (the appellant) when attempting to lift such weight with the assistance of the other person" was a question for them. Clearly it was open to the jury upon the trial judge's summing up to conclude that, because of the assistance which she received, the weight lifted by the appellant was less than that prescribed by s.36(1) as the maximum weight which a female over eighteen years of age was allowed or required to lift by hand. The jury returned a verdict for the respondent.

4. The appellant contended that the learned trial judge was in error in charging the jury as he did. She submitted that the prohibition in s.36(1) is a prohibition against allowing or requiring an employee to lift or carry by hand an object with a total weight greater than that specified in the sub-section, it being immaterial that the weight may be shared with someone else. On the other hand, the respondent contended that the trial judge was correct in his summing up and that s.36(1) is a prohibition against allowing or requiring an employee to exert the effort required to lift a weight greater than that specified in the sub-section. It was implicit in this contention that if two or more persons lift or carry by hand the one object which weighs more than the maximum weight, that weight may nevertheless be divided between or among them with the possible result that none of those persons exerts more effort than is necessary to lift that maximum weight.

5. Before the Factories, Shops and Industries Act was amended by the Metric Conversion Act 1975 (N.S.W.), s.36(1) began with the words: "No person employed in a factory shall be allowed or required to lift or carry by hand a greater weight than ..." (emphasis added). The amendment substituting "mass" for "weight" was made at the same time as the references to pounds in s.36(1) were converted to kilograms. These amendments were contained in a schedule to the Metric Conversion Act. Whilst, as a matter of physics, "mass" and "weight" are distinct concepts, no consequence flows from that distinction for the purpose of the sub-section. It is clear enough that in substituting "mass" for "weight", the legislature did not intend to alter the effect of s.36(1). Indeed, the long title of the Metric Conversion Act is "An Act to further facilitate the adoption of the metric system of measurement ... and to amend references to physical quantities in certain other Acts" and s.2(1) of that Act provides: "The provisions of this Act ... are for the purpose of metric conversion."

6. The prohibition contained in s.36(1) is against allowing or requiring a person employed in a factory to lift or carry by hand a greater mass than that specified. Mass is the measure of a property of an object rather than the object itself. Accordingly, if two people lift or carry an object, both of them lift or carry it with all its properties including its mass, even though the weight actually borne by each of them may be less than the mass of the object. Put another way, the force exerted by each person may be less than the total force required to lift or carry the object, but what is actually lifted or carried is the object having its own mass or weight.

7. Had s.36(1) been intended to impose a prohibition against an employee being allowed or required to bear more than a maximum weight, it could have been worded to achieve that result. It is not so worded. It is expressed in such a way that the mass of that which is being lifted or carried is the critical factor rather than the weight borne by each individual where more than one is involved in the lifting or carrying. Nor is it surprising that the legislature should have chosen to impose the prohibition which it has. The mass selected as the maximum in each category of persons referred to in s.36(1) is arbitrary, indicating a desire to be certain in the interests of the particular categories of employees singled out, rather than to provide for individual situations. Were the weight borne by an individual, rather than the mass lifted or carried, to be the criterion of liability for a breach of s.36(1), that certainty would be sacrificed in cases where more than one individual was involved in the lifting or carrying. This is because it would be difficult to calculate with any precision the weight actually borne by each individual at any point during the lifting or carrying process. Such considerations as the rate of acceleration of movement, the height of the individuals involved and the shape and size of the object being lifted or carried would necessarily affect the outcome and would render the practical application of the provision in the workplace a difficult matter. Indeed, at the time when an employee is "allowed or required to lift or carry by hand" the relevant object, the variables affecting the weight to be actually borne by the employee in moving the object will be unknown to the employer.

8. Section 36(1) may be compared with s.72(1) of the Factories Act 1961 (U.K.) which was considered by the House of Lords in Brown v. Allied Ironfounders Ltd. (1974) 1 WLR 527; (1974) 2 All ER 135. That provision read: "A person shall not be employed to lift, carry or move any load so heavy as to be likely to cause injury to him" (emphasis added). The question which arose in that case was whether the employee concerned was in fact employed to lift, carry or move wire mesh cages. It was in that context that reference was made to the lifting of a weight together with others. For example, Lord Kilbrandon said, ibid., at p 533; p 141 of All ER:

"Take a length of railway track weighing 600 lb., and

suppose that a gang of five men is normally detailed to lift

it. Then each man is employed to lift a load of 120 lb.

But if two members of the gang elect to leave the job for

some purpose of their own, and the three remaining decided

to lift the rail by themselves, then each is lifting

200 lb., which may be a weight likely to cause him injury,

although each is only employed to lift 120 lb. The employer

is not in breach of the section."

Not only is the word "load" in the English provision to be contrasted with the word "mass" in s.36(1), but the problem to which the House of Lords was directing its attention was a problem which does not arise in the present case.

9. And in Waugh v. Kippen [1986] HCA 12; (1986) 160 CLR 156 this Court considered a different question again in relation to a similar provision contained in a rule under the Factories and Shops Act 1960 (Q.). The first clause of that rule provided: "A male employee over eighteen (18) years of age shall not be permitted or allowed to lift carry or move by hand any object so heavy as to be likely to cause risk of injury." The question, which the Court decided in the affirmative, was whether the liability of the employers under the rule was to be adjudged in the light of what they knew or ought to have known about any incapacity on the part of the employee. It was with reference to that question that the majority said, ibid., at p 167:

"If they knew or ought to have known of the likelihood of

the risk of injury then compliance with the rule obliged

them to forbid the appellant to attempt to move the beam in

that manner without assistance."

The majority drew a distinction between the clause quoted above and the succeeding clause, which provided the maximum weights in kilograms which male employees under the age of eighteen years and female employees were to be permitted to lift, carry or move by hand. The majority contrasted the two clauses of the rule, saying, ibid., at p 163:

"(Sub-cl.(2)) proceeds by way of setting arbitrary limits to

protect the specified classes of employees. Those limits

exhibit a modesty which appears to take account of the

widely differing physical capacities of adolescents and

females over eighteen years of age. The arbitrary character

of the rule is no doubt intended to facilitate enforcement.

On the other hand, sub-cl.(1) is the primary provision and

must be construed in accordance with its plain terms. It

covers the vast majority of tasks carried out by employees.

The range of circumstances in which those tasks are carried

out makes it inappropriate to prescribe an arbitrary limit.

An entirely different criterion of industrial safety is

postulated, namely, whether the object is so heavy as to be

likely to cause risk of injury."

Plainly the majority considered the second clause to be of a character entirely different to that of the first clause. The meaning of the second clause and, in particular, the question raised in the present case, did not, however, arise for consideration.

10. For these reasons, the prohibition imposed by s.36(1) of the Factories, Shops and Industries Act is against a person employed in a factory being allowed or required to lift or carry by hand, whether alone or together with others, an object (which may be an aggregation of individual items) having a greater mass or weight than the maximum prescribed. It follows that the learned trial judge was in error in the direction which he gave to the jury. The appeal should be allowed and there should be a new trial.

Set aside the order of the New South Wales Court of Appeal and in lieu thereof:

1. Order that the appeal to that Court be allowed with costs;

2. Set aside the verdict of the jury and the judgment of

Reynolds J. dismissing the plaintiff's claim;

3. Order a new trial; and

4. Reserve the costs of the first trial to the Supreme Court of

New South Wales.