Piro v W Foster and Company Limited [1943] HCA 32

Piro v W Foster and Company Limited [1943] HCA 32 - HCA 1943 case summary — Zoe

[42]

This Court is not technically bound by a decision of the House of Lords, but there are in my opinion convincing reasons which lead to the conclusion that this Court and other courts in Australia should as a general rule follow decisions of the House of Lords. The House of Lords is the final authority for declaring English law, and where a case involves only principles of English law which admittedly are part of the law of Australia, and there are no relevant differentiat- ing local circumstances, the House of Lords should be regarded as finally declaring that law: See Robins v. National Trust Co. Ltd. (1). As was said in L'rimble v. Hill (2) (a decision of the Judicial Committee of the Privy Council): "It is of the utmost importance that in all parts of the Empire where English law prevails the interpreta- tion of that law by the courts should be as nearly as possible the same." In Webb v. Federal Commissioner of Taxation (3), Isaacs J. referred to the passage from J'rimble v. Hill (4) as a " clear sugges- tion" that a relevant decision of the House of Lords should be accepted by an Australian court as decisive: See also Davison v. Vickery's Motors Ltd. (5). In Waghorn v. Waghorn (6) this Court referred to the desirability of uniformity of decision with the English courts. In my opinion it should now be formally decided that it will be a wise general rule of practice that in cases of clear conflict between a decision of the House of Lords and of the High Court, this Court, and other courts in Australia, should follow a decision of the House of Lords upon matters of general legal principle. Special considerations apply to constitutional cases governed by s. 74 of the Constitution (See Baxter v. Commissioners of Taxation (N.S.W.) (7); Flint v. Webb (8)), but it is unlikely that cases of this kind would come before the House of Lords. The ruling of the Court in this case will now relieve State courts from the embarrass- ment to which reference was made in Houston v. Stone (9), when the Supreme Court, in the absence of any such ruling as that which is now given, regarded itself as bound to follow Bourke v. Butterfield & Lewis Ltd. (10), notwithstanding the contrary decisions of the House of Lords.

[103]

It is true, as his Honour said in commenting on this evidence, that the direction was capable of meaning that the skin might be straightened out after the appellant put it on the shelf. But his Honour expressed this opinion about the appellant as a witness : " Although, generally speaking, the plaintiff appeared to be frank and to be attempting to give true evidence, I am not prepared to accept the whole of his evidence concerning the instructions given to him. He was giving his evidence nearly a year after the time Chown put him on to the work. His answers were, in some instances, inconsistent with each other and I do not think his memory can be relied upon." Chown gave this evidence, that he "instructed feeders all the time that they must not under any conditions put their fingers under the plate", and gave this further evidence: " When I told him to go on feeding, it is hard to get down to the words I would use. IT always run through the same." To his Honour: "It is a practice I always do - I never miss on it. I remember putting him on the machine." Q. "Have you any specific recollection with regard to the instructions you gave to this particular boy when he first came on to work the machine?" A. "I remember putting him on there and standing there with him for a while. I know the instructions I give to all of them, and they would be the same right through. It is only in that way that I can say what I told the boy." XD. "T would not employ any feeder without giving those instructions. I have never put any feeder on without giving those instructions. Plaintiff was on the machine for about a couple of months before his accident. It would be four or five weeks." Q. " Do you remem- ber any specific occasion on which you said anything to Piro about his working at the machine ?"" A. " It is very hard for me to answer a question like that because it is something I do daily, perhaps a dozen timesaday. Ican'tsay toaday oranhour." To his Honour: "T can't say any special date when I instructed him after he started on the machine." XD. "I have warned him - warned all of them - after they went on the machine." To his Honour: "TI could not definitely remember that there was an occasion when I have gone there after the boy had started on the machine, and I then warned him. All I can go on is that it is my practice, whoever the feeder is, to go there from time to time and warn him. I did this with plaintiff - I would do it more than once in the period of a few weeks."

[106]

The operator of the machine gave the following evidence: "TI did my best to tell them not to put their hands under the machine. I didn't see Piro putting his hands under the plate. If he did put his hands under the plate at any time I didn't see it. If I had seen him do so I would promptly have told him about it." To his Honour: "He must have put his hand under when he had this accident." XD. "At times I stopped the roller and went around and showed him how to put the skins under the machine, and it was then I saw him put his hands under the plate." To his Honour: "Thad seen Piro put his hand under the plate and I stopped the machine and went around the other side and warned him, and I showed him how to put a skin in, and I told him what to expect if he did get his hand in the roller. I can't remember how many times I did that, but I know I did it - I suppose it would be more than once, I know I did it a number of times. They don't do it very often - it is only now and again when the skin is curled up or when a skin catches the bolster under the plate and does not go into the roller properly. The feeder may then put his hand under the plate and pull the skin out and put it in again." XXD. "Several times I went to the other side of the machine and told Piro how to do his job. If the skin was not in properly they could put their hands in under the plate and pull it out, but I would tell them not to do that. I am definite that sometimes Piro put the skins in not quite as they ought to be put in. It is quite possible for the skin to catch on the bolster - the leather belt between the roller and the plate. Even the best of feeders will sometimes put the skins in so that they will catch on the edge of the belt. When I went around the other side, I told Piro what I thought was the best way to put the skins in. I picked up a skin and put it in the roller and showed him how to do it. I would then tell him not to put his hand under the plate. I told him not to do so. I know I went around there on a number of occasions to show Piro - it would not be a dozen times a week. When he first started feeding, I went there two or three times the first.day. It is not very often that I go to the other side of the roller. I said pretty much the same thing to Piro each time J went around there. I can't tell you the words I used. I told him there was no necessity to put his hands under the roller, and I showed

[123]

The question is whether the addition of the circumstance that the appellant was warned not to put his hand under the plate, to the fact that he did this dangerous act, justifies the conclusion that the appellant was guilty of negligence which materially contributed to his injury. Lord Wright said in Caswell's Case (3) : "Tf the matter had been free from authority, I should, I think, have thought it simpler to hold that a workman's claim for injury caused by breach of the employer's statutory duty to fence and like duties, is only barred by blameworthy conduet on the man's part of such gravity and so directly causing the accident as in the judgment of the judge or jury to be properly described as the substantial cause of the accident and to shift the responsibility to him. This view would have been in accord with the general intention of the statute and would have avoided the technicalities which have gathered round the doctrine of contributory negligence. But that path is closed by the line of decisions in England, and if contributory negligence is properly defined, I do not feel that the distinction is for practical purposes generally other than one of words. 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 the fatigue, to the slackening of attention 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." If for any such reason the appellant forgot the warning when he attempted to deal with the creases in the skin which was about to be ironed, the appellant's conduct was not negligence. The evidence of the fore- man Chown shows that the warning would be forgotten by the feeders if it were not repeated. He said: "TI regularly remind them because there is a danger that they will be injured if I don't remind them." It was as equally consistent with the facts that the appellant

[130]

The crucial question is, therefore, whether the defence of contribu- tory negligence can be pleaded when a plaintiff establishes that his injury has been caused by the breach of a statute which requires that certain specific safeguards shall be taken to protect a particular class, which includes the plaintiff, against the kind of injury which he has suffered. There is ample evidence to support his Honour's finding that the plaintiff was instructed that his duty was to place the skins on the table, that he was frequently warned and clearly understood that he must not place any part of his hand in the press because this was dangerous, that it was not necessary in the course of his duty to place his hand in the press, and that if the plaintiff had not disregarded this warning the accident would not have occurred. It is now clear that where a statute is passed requiring an employer to take certain specific precautions for the protection of his employees, although the statute only provides for a prosecu- tion for breach, the statute creates an individual civil right of action in the class of persons for whose protection it is passed, so that any one of them who is injured by the breach can sue the employer in an action for damages at law. In Bourke v. Butterfield & Lewis Ltd. (1) this Court expressed the view that, since such a statute is passed in order to protect employees against the dangers to which they would ordinarily be subjected in the course of their employ- ment, an employer who fails to comply with the statute cannot be heard to say that an employee has by his negligence materially contributed to an accident, which would not have occurred but for the breach by the employer of the provisions of the statute. It was held, therefore, that the only defence open to an employer in such a case is to plead and prove that, despite the failure to comply with the statute, the accident would not have occurred but for the deliber- ate and wilful misconduct of the employee. But the English courts have taken a different view, and it is now established by the recent decisions of the House of Lords in Caswell v. Powell Duffryn Associated Collieries Ltd. (2) and Lewis vy. Denye (3) that such a breach is, for the purposes of an action for damages brought by an employee who has been injured against his employer, " equivalent to negligence " (per Lord Simon L.C. in Lewis v. Denye (4) ), so that an employer will

[135]

correct, but Lord Duwnedin's view is eminently practical. Lord Dunedin's view closely approximates that expressed by Isaacs J. in Webb v. Federal Commissioner of Taxation (1). A decision of the House of Lords is a decision of the highest judicial tribunal of the Empire. It is a final decision, because "the House of Lords alone does not depart from its rulings, and they remain, unless altered by legislation, the reason being that the House of Lords is a legis- lative body " (per Rich J. in Waghorn v. Waghorn (2)). It is the invariable practice for the Australian courts, including this Court, to follow a decision of the House of Lords as of course, without attempting to examine its correctness, although the decision is not technically binding upon them; and it would appear to be most inadvisable to hold that, where there has been a previous decision of this Court, this Court should adopt a different practice and merely review its own decision in the light of the subsequent decision of the House of Lords in order to decide whether it considers its previous decision to be wrong. In this event, if this Court decided to adhere to its own decision, there would be a conflict between the interpre- tation of the law as declared by the highest judicial tribunal in the Empire and as declared by this Court. This Court has on several occasions given up its view in order to conform with that of the Court of Appeal. This is because, as the Privy Council pointed out in Trimble v. Hill (3), "it is of the utmost importance that in all parts of the Empire where English law prevails, the interpretation of that law by the Courts should be as nearly as possible the same " : See Waghorn v. Waghorn (4). The importance of uniformity is clear in the present case, because, since the two decisions of the House of Lords, the Court of Appeal has been busy applying and extending the principles there laid down to numerous cases of breach of statutory duties of all kinds (Cf. Hutchinson v. London and North Eastern Railway Co. (5); Sparks v. Edward Ash Ltd. (6); Proctor yv. Johnson and Phillips Ltd. (7) ); so that, if this Court adhered to its own decision in Bourke v. Butterfield & Lewis Ltd. (8), the divergence between the interpretation of the same law in England and in Australia could tend to become even more accentuated in the future than it is at present.

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Judgment (151 paragraphs)

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