Smith v Joyce

Smith v Joyce - [1954] HCA 15 - HCA 1954 case summary — Zoe

[7]

At the time of the respondent's injury, Smith was engaged in the process of slaughtering a bullock. The preliminary step of stunning the bullock had been taken and immediately thereafter Smith had performed the process of "pithing" it. This consists of severing the spinal cord with an extremely sharp knife. Thereupon it became Smith's duty to insert a short length of cane into the wound so made and to push it along the spinal cord. This process is known as "fiddling" and is intended to avoid, as far as possible, violent muscular movements during the ensuing process of bleeding which is accomplished by cutting the beast's throat, or "sticking" it, and then severing the main artery. It was common ground that in the absence of fiddling violent muscular movements, capable of causing danger to those engaged in the slaughtering operation, might take place during the process of sticking. At the time he received his injuries the respondent was standing at a small distance from Smith and was engaged in removing the tongue from the head of a bullock previously slaughtered and Smith was about to bleed the beast with which his attention was engaged. He had, in fact, "stuck" it and was about to cut the main artery. Both men were said to be facing towards one another, though they were bending down so as to perform their respective tasks, and the distance between them was variously estimated at between three and six feet. Whilst they were so engaged the beast appeared to kick violently and Smith removed from the beast's throat the hand in which he was holding his knife in order to ensure safety for his other hand. It is common ground that this was done quickly, that Smith fully extended his arm and that the knife came in contact with the respondent in the vicinity of his neck and face causing the injuries complained of. Perhaps, it should be added at this stage, the respondent in evidence further claimed that Smith slipped on the floor of the slaughter room and it was further alleged, as a cause of this, that Smith was wearing footwear which was unsuitable for the task in which he was engaged.

[9]

It is convenient first of all to deal with the question whether there was evidence to support the first of these two specific findings. Smith emphatically asserted that he did not fail to perform the operation of fiddling and there is, of course, no other direct evidence on the point. We were, however, invited to say that the jury was entitled to infer from the mere fact of the violent muscular movement on the part of the beast that this process had been omitted, but it is clear from the evidence that no such inference can or should be drawn. But in any event the jury was not invited to draw any such inference; they were directed by the learned trial judge that the only evidence to suggest that there was no pithing or fiddling was a statement alleged by the respondent to have been made to him by the appellant M. F. Bourke and this appeal should be considered on the basis that this was the only evidence capable of supporting the jury's finding. This statement was alleged to have been made in the course of a casual conversation between the respondent and M. F. Bourke about a fortnight after the former had recovered sufficiently to resume work and the latter is alleged to have said: "Trevor" (meaning Smith) "was a fool to attempt sticking it without fiddling it". The respondent was closely cross-examined on this evidence and M. F. Bourke denied that any such conversation had taken place. Indeed, he maintained that he had no knowledge of how the accident had happened. Nevertheless, the jury found that there was an omission to "pith and fiddle the beast". There is, of course, no evidence whatever of an omission "to pith" and the finding of the jury must be understood as a finding that, although pithing had taken place, the process of fiddling, which should have taken place immediately thereafter, was omitted. It is conceded that such an omission would have constituted negligence but in relation to the evidence concerning the alleged omission two submissions were made. The first of these was that, in the circumstances, the evidence was so insubstantial and tenuous that it should not have been submitted for the consideration of the jury and the second was, that the directions of the learned trial judge in relation to the evidence on this point were so unsatisfactory that the verdict should not be allowed to stand.

[10]

In support of the first of these submissions it was contended that it was for the learned trial judge to consider whether the evidence disclosed that M. F. Bourke had sufficient knowledge of the facts "to found" an admission by him. We confess to considerable difficulty in the circumstances of this case in appreciating this contention but counsel for the appellant purported to base it upon observations in Lustre Hosiery Ltd. v. York [1] . It is, of course, a question of law whether a statement made by a party to an action is capable of constituting an admission on any relevant issue, but this, in general, must be determined by an examination of the words used. As was said in Lustre Hosiery Ltd. v. York [2] : "If they disclose an intention to affirm or acknowledge the existence of a fact" they will constitute evidence of an admission "whatever be the party's source of information or belief". Indeed, if the words are sufficiently clear they will constitute such evidence even though it may appear quite clearly that the party had no knowledge whatever of the fact or facts which he has purported to admit. But as was pointed out in that case upon the question whether a party "intends to affirm or acknowledge a state of facts the party's knowledge or source of information may be material" [3] . Illustrations of cases where the meaning of a party's words may to some extent be thought to depend upon the state of his knowledge are given in that case and it is unnecessary to repeat them here; it is sufficient for the purposes of this appeal to say that this is not such a case. The meaning of the statement attributed to M. F. Bourke is not of doubtful significance; it purports to characterize his employee as foolish for having omitted to fiddle the beast before sticking it and, the meaning being clear, the source of M. F. Bourke's knowledge is immaterial. But even if it were a material matter for consideration any attempt to examine the source of his information would be of little help for Bourke not only denied the making of the statement but asserted that at the relevant time he had no knowledge whatever of the circumstances in which the respondent's injuries had been caused. If, however, the jury was satisfied that the statement was made, as apparently its members were, it is not unreasonable to assume that they were not prepared to accept his assertion that he had no knowledge of the circumstances in which the accident happened. It is obvious, since Bourke was not present at the time, that he had no personal knowledge of the circumstances but he was, of course, in a position where he might well have received information from either Smith himself or from his brother who was the other member of the partnership.

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Decision date

Before

Source

Judgment (18 paragraphs)

Parties

Cited By (2)