Neill v NSW Fresh Food & Ice Co Pty Ltd - [1963] HCA 4 - HCA 1963 case summary — Zoe

CTHHCA

Neill v NSW Fresh Food & Ice Co Pty Ltd

[1963] HCA 4

High Court of Australia|1963-03-07|Before: Owen JJ, McTiernan J, Kitto J

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At a glance

Source facts

Court

High Court of Australia

Decision date

1963-03-07

Before

Owen JJ, McTiernan J, Kitto J

Source

Original judgment source is linked above.

Judgment (15 paragraphs)

[1]

High Court of Australia Dixon C.J. McTiernan, Kitto, Taylor and Owen JJ. Neill v NSW Fresh Food & Ice Co Pty Ltd [1963] HCA 4

[2]

In my opinion this appeal should be dismissed with costs. The burden of establishing that the plaintiff appellant suffered the injuries of which he complained through the negligence of his employers or someone for whose acts or omissions they were answerable rested upon the plaintiff who now appeals. In my opinion the evidence laid before the jury disclosed no ground which could reasonably support a finding that any such negligence had occurred or existed. In effect the plaintiff says that he was injured at work, he slipped where it was slippery and where it could not but be slippery, something ought to have been done to prevent his hurting himself by slipping and it was for the jury to say what. Of course they did not say what; they simply said that the defendant must pay damages. The suggestions of possible items of negligence made in support of the plaintiff's case do not appear to me to be tenable. Neither by direct evidence nor reasonable inference did it appear that any course could be taken to protect the plaintiff from the danger in his task consistent with the full accomplishment of its evident purpose - namely, the complete removal by cleaning of possible sources of bacterial growth. It must be remembered that the danger from which he claims that he should have been protected was that of injuring himself by slipping while crouching in a confined cylinder, not, so one would think a priori, an extreme risk of any fearful consequence. And evidence was not led to establish any high degree of risk or of danger.

[4]

The appellant, as a servant of the respondent, was required to work in the confined space of a cylindrical milk container, on a slippery surface which the doing of his work necessarily made more slippery still. In such circumstances the risk of his falling and suffering some degree of injury was obvious. The respondent therefore owed him a duty to provide all reasonable protection against the danger of a fall. In fact it gave him no protection at all. At the trial the burden lay upon the appellant of satisfying the jury that some protection was reasonable, and that his injury resulted from the absence of it. I should not have thought that evidence was needed to entitle the jury to be satisfied that some means by which a man might steady himself inside the container could have been provided. There could hardly be any physical difficulty in the way of adding a handrail, for example. Of course, in designing and installing any such thing, care would need to be taken not to create unhygienic corners or crevices, but in these days it is hard to think that that would present any problem. The difficulty that seems to me to stand in the appellant's way is that without evidence from a person qualified to speak on the subject it remained a matter of conjecture whether any handrail or other steadying device could have been so located in the container that, while on the one hand it could be effectually used without undue inconvenience by a person doing the appellant's work, on the other hand it would not create a counterbalancing hazard for such a person by forming a projection which he might accidentally strike. A rail along the top, for example, might be either too high to serve the purpose in view, having regard to the exigencies of the work, or so low that the worker would be in danger of hitting his head on it. There was a complete absence of evidence as to the merits and demerits of a handrail or of anything else that imagination might suggest as a possibly appropriate provision, and particularly as to any deficiencies or drawbacks which, in the circumstances of the appellant's work, might outweigh the advantages of any such provision. For that reason, in my opinion, the verdict given for the appellant cannot be supported.

[9]

The substance of the appellant's complaint was that the floor of the container was very slippery, coated as it was with a film of milk residues, and this condition was made worse as soapy water drained from the sides of the container on to the floor. There was, he says, nothing in the container "to hold on to" and in the circumstances it is asserted that he was exposed to unnecessary risk of injury. According to his evidence he had fallen on other occasions but again the evidence is vague and we quote: "Q. You say, I think, that you had fallen down on some previous occasions, inside? A. Yes. Q. And on those occasions you had fallen when you were in a squatting position, cleaning the inside of the container? A. Yes. Q. And I suppose on those occasions your foot had slipped, had it? Was that what caused you to fall? A. Yes. Q. When that happened I suppose you sort of sat down, did you? A. I was able to save myself. Q. So on the other occasions your foot has slipped, but you have not actually fallen? A. That would be it. Q. Is that correct? A. Yes. Q. So, except for this day that you tell us about you had never actually fallen before? A. Yes, I have slipped and fell before. Q. You had actually fallen before? A. Yes, I fell on the floor. Q. On those previous occasions you had fallen because your foot had slipped? A. Yes. Q. When you were in a crouching position cleaning the walls? A. Yes. Q. And on those occasions when your foot slipped I suppose you simply sat down? That is what the fall consisted of? A. Yes. Sometimes I could hold on to the end of the tank; I could hold on to the top of the tank. Q. But on the occasions when you say you weren't able to save yourself and your foot slipped, the result was that you sat down on the floor of the tank? A. Yes." Nevertheless the appellant, according to his evidence, had complained to one or other of the foremen on more than one occasion about the slipperiness of the containers but nothing was done and he continued to do the work in the knee-high rubber boots which had always been provided.

[15]

It was, no doubt, open to the jury in the present case to say that the evidence concerning the slippery condition of the floor of the container involved the appellant in some risk of injury. No doubt, it was also open to them, within the bounds of reason, to say whether the risk was substantial or not. But it was a risk which was inherent in the task itself. This circumstance, of course, is not in itself of undue significance for as has been said "There is, one might think, an element of risk in the performance of the most simple of operations in an industrial establishment; sometimes the risk is both grave and apparent whilst in others it may be said to be trivial and remote. Between these two extremes the degree of risk may vary infinitely" (Smith v. The Broken Hill Pty. Co. Ltd. [2] ). But assuming that, upon the evidence, the jury were entitled to say that the appellant was exposed to a risk which was not trivial or remote, it was still necessary for him to establish that the risk was, as, indeed, was alleged in the declaration, an unnecessary one. It was, of course, unnecessary, if by the adoption of some reasonable form of precaution or safeguard it could have been eliminated or minimized and apparently the jury were of the opinion that this could have been done. But we are entirely in the dark concerning the steps which they thought that the respondent, as a reasonably prudent employer, might have been expected to take. Before us, however, the suggestion was made from the bar table that it was open to the jury to find that the appellant should have been provided with "non-skid boots", or alternatively, that the interior of the container should have been provided with a handrail. No suggestion was, however, ventured as to how or where the handrail should have been fitted. Either of such conclusions, it was said, was open to the jury as a matter of common knowledge. But if there is any common knowledge that there exist such things as non-skid boots, effective in the circumstances alleged in the evidence, we are not parties to it and we do not think that it was open to the jury so to find. Further, although it may have been physically possible for a handrail to be fitted to the inside of the container there seems to be no evidence in the case to show whether the container was the property of the respondent or of the New South Wales Government Railways, or whether it was at liberty to instal such a fitting. But leaving this objection aside it is by no means a matter of common knowledge that the provision of such a fitting, inside a stainless steel container designed for the bulk carriage of milk and, therefore, subject to the most scrupulous requirements as to cleanliness, was permissible or appropriate. In our view the verdict cannot be supported on either of these grounds and, since no other grounds were suggested and we, ourselves, can see none, the appeal should be dismissed.