Statutory Duties - Breach - Statutory defence to prosecution - Whether answer to civil action.

MCTIERNAN A.C.J. This appeal is from a judgment of the Court of Appeal of the pleas of the defendant to a count in the plaintiff's declaration, which is based on the Factories, Shops and Industries Act, 1962 (N.S.W.). The action in which the appeal arises is pending in the Supreme Court. The relevant statutory provisions are in s. 27 of the Act. The count alleges breach of s. 27, sub-s. (1) (d). The pleas are based on s. 27, sub-s. (5). The Court of Appeal decided that the matters alleged in the several pleas constitute a defence to the count. The appeal is brought with the leave of this Court. The plaintiff calls in question the decision of the Court of Appeal. An object expressed in the long title of the Act is to make provision with respect to supervision and regulation of factories and to the safety of persons employed therein. Section 27 is in Div. 5, of Pt III of the Act. This Division is entitled "Safety (Factories)". Sub-section (1) contains safety provisions laying duties on occupiers of factories. Section 4, sub-s. (1), defines "occupier". It is sufficient to say that the expression applies to the employer of persons working in a factory. "Factory" is defined by the same sub-section. Section 27, sub-s. (1), so far as material provides: - "The occupier of a factory shall securely fence all dangerous parts of the machinery therein, and with respect to such fencing the following provisions shall have effect - . . . (d) all fencing shall be constantly maintained in position in an efficient state while the parts required to be fenced are in motion or use." Section 27, sub-s. (2), provides: - "The duty imposed on the occupier of a factory by this section shall be an absolute duty, in no way qualified by any other provision of this Act." Section 27, sub-s. (4), provides: - "Any occupier of a factory who contravenes any of the provisions of subsection one of this section shall be guilty of an offence against this Act and be liable to a penalty not exceeding three hundred pounds." Section 27, sub-s. (5), provides: - "In any prosecution for a breach of the obligation imposed on an occupier by paragraph (d) of sub-section one of this section it shall be a defence if the defendant proves that -

(a) the parts required to be fenced were necessarily exposed

while in motion or use for examination or for lubrication

or adjustment shown by such examination to be

immediately necessary; and

(b) the period of exposure was no longer than was absolutely

necessary for such examination, lubrication or

adjustment; and

(c) he took all precautions necessary to avoid the risk of

injury to any person; and

(d) such other conditions as may be prescribed were complied

with."

Paragraphs (a)-(d) of s. 27, sub-s. (1), obtain the force of enacting clauses by virtue of the provision of this sub-section which says "and with respect to such fencing the following provisions shall have effect". Each of these provisions imposes an additional duty. It seems from sub-s. (2) that the legislature conceived of sub-s. (1) as creating a composite duty made up by all the safety provisions in the sub-section. The right of the plaintiff to bring an action for breach of s. 27, sub-s. (1) (d), is not disputed (Lochgelly Iron and Coal Co. Ltd. v. M'Mullan [1933] UKHL 4; (1934) AC 1, at p 13 : nor does the defendant maintain that a prosecution under s. 27, sub-s. (4), is the only remedy allowed by the Act for such breach (Groves v. Lord Wimborne (1898) 2 QB 402 ). The basis of an action of this kind may be explained by quoting a passage from the speech of Lord Kinnear in Butler (or Black) v. Fife Coal Co. Ltd. (1912) AC 149, at pp 165, 166 . The passage relates to s. 49 of the Coal Mines Regulation Act, 1887 (U.K.) and the rules under the section. The passage is as follows: "Now the object of the present statute is plain. It was intended to compel mine owners to make due provision for the safety of the men working in their mines, and the persons for whose benefit all these rules are to be enforced are the persons exposed to danger. But when a duty of this kind is imposed for the benefit of particular persons, there arises at common law a correlative right in those persons who may be injured by its contravention. Therefore I think it quite impossible to hold that the penalty clause detracts in any way from the prima facie right of the persons for whose benefit the statutory enactment has been passed to enforce the civil liability. I think this has been found both in England and Scotland in cases in which the point was directly raised, the case of Groves v. Lord Wimborne (1898) 2 QB 402 , in England and Kelly v. Glebe Sugar Refining Co. (1893) 20 R 833; 30 ScLR 758 , in Scotland." In my opinion the right of the plaintiff if he was injured by a breach of s. 27, sub-s. 1 (d), is correlative to the duty imposed by that provision on the defendant. Without s. 27, sub-s. (4), a right of civil action would accrue to a person damnified by breach of any safety provision of s. 27, sub-s. (1) (Cutler v. Wandsworth Stadium Ltd. per Lord Simonds (1949) AC 398, at p 407 ). The right exists independently of s. 27, sub-s. (4), and s. 27, sub-s. (5), does not touch it. This is clear from the opening words of the sub-section. (at p401)

2. In David v. Britannic Merthyr Coal Co. (1909) 2 KB 146 an action for breach of statutory duties under the Coal Mines Regulation Acts, 1887 and 1886 (U.K.), Fletcher Moulton L.J. said: " . . . and further - a conclusion that has a more direct bearing on the questions in this action - that statutory defences to proceedings of a criminal nature in respect of 'offences under the Act' are only defences to such proceedings, and are not statutory defences in civil proceedings based on the non-performance of the statutory duty. Penalties are not in lieu of civil liability; they are additional to and independent of it" (1909) 2 KB, at p 162 . (at p401)

3. In the case of Potts (or Riddell) v. Reid (1943) AC 1 Lord Thankerton said: "The respondent, however, maintained that the statutory provisions which afford grounds on which he would be held not to have committed an offence or not to be liable to conviction of an offence equally provided grounds which would be a good defence to the present civil action. In this matter, the relevant statute is the Factories Act, 1937, and the relevant sections are ss. 130, 136 and 137, which are in Pt XII of the Act relating to 'Offences, Penalties and Legal Proceedings', as modified for Scotland by s. 156. In my opinion, these sections, which solely relate to criminal prosecutions and contain no reference to civil liability, do not affect the existence of a contravention of the Act or regulations or the law applied in M'Mullan's Case (4). In my opinion, it would need some provision in the Act as to civil liability to relieve the employer of his absolute obligation towards the workman. Such a provision is to be found in s. 102, sub-s. (8), of the Coal Mines Act, 1911, and reference may be made to Coltness Iron Co. Ltd. v. Sharp (1938) AC 90 . There is no such provision in the Factories Act, 1937" (1943) AC, at p 11 . (Sections 130, 136 and 137 of the Factories Act are in Halsbury's Statutes, 2nd ed., vol. 9, pp. 1104, 1107. Section 102, sub-s. (8), of the Coal Mines Act, 1911, is replaced by s. 157 of the Mines and Quarries Act, 1954: - see Halsbury's Statutes, 2nd ed., vol. 34, p. 627.) M'Mullan's Case to which Lord Thankerton refers is Lochgelly Iron and Coal Co. Ltd. v. M'Mullan [1933] UKHL 4; (1934) AC 1, at p 13 . He referred to this case at p. 11 of the report of Potts (or Riddell) v. Reid (1943) AC 1 . Lord Wright observed: "The point has not arisen precisely for decision, but I should be disposed to think that prima facie qualifying words in the statute (the Factories Act, 1937) which are directed to affording a defence against criminal responsibility do not affect civil liability to answer for damages caused by a breach of the duty to the workman" (1943) AC, at p 25 . Lord Porter said: "I assume however without deciding that the respondent in the present case (Potts (or Riddell) v. Reid) has established the necessary facts to show that he was not guilty of an offence. Does this assumption provide him with a defence against civil liability?" (1943) AC, at p 30 . Lord Porter referred to the decision of Fletcher Moulton L.J. in David v. Britannic Merthyr Coal Co. (3) and to the decision of Lord Atkinson in Watkins v. Naval Colliery Co. (1897) Ltd (1912) AC 693 . This decision is expressed as follows: "Nothing can, I think, be plainer than that" (s.50) "is a matter of defence to the criminal liability, the burden of proving which rests upon the owner, agent or manager, as the case may be, who desires to exculpate himself. And if it be a defence against criminal responsibility it is clearly, I think, a matter of defence against civil responsibility also." Lord Wright (1943) AC, at p 24 suggests that Lord Atkinson arrived at his decision "on the particular words of the statute". Lord Porter continuing his reasons for judgment in Potts (or Riddell) v. Reid (1943) AC 1 said: "Which principle, then, is to be applied in the present case: the view of Fletcher Moulton L.J. in David v. Britannic Merthyr Coal Co. (1909) 2 KB 146 , criticized though it may have been by members of your Lordships' House, or that contained in the words of Lord Atkinson in reference to the breach of a regulation not absolute in its terms: Watkins v. Naval Colliery Co. (1897) Ltd (1912) AC 693, at p 705 ? My Lords, in my view, the former ought to prevail. Criminal and civil liability are two separate things. A higher degree of negligence has always been demanded in order to establish a criminal offence than is sufficient to create civil liability. An obvious illustration is the difference between the degree of negligence in accident cases required to prove the crime of manslaughter and that sufficient to create civil liability. The legislature might well be unwilling to convict an owner who failed to carry out an absolute statutory duty of a crime with which he was not himself directly concerned, but still be ready to leave the civil liability untouched" (1943) AC, at p 31 . In Harrison v. National Coal Board (1951) AC 639 Lord Porter made these observations: "In my opinion the decision of your Lordships' House in Riddell v. Reid (1943) AC 1 , is not in any way inconsistent with this view. That decision turned upon the terms of s. 137, sub-s. (1), of the Factories Act, 1937, under which there could be no question but that a personal duty was placed upon the owner. The Building Regulations, 1926, the construction of which was in question, in terms imposed such an obligation. They are introduced by the words 'It shall be the duty of every contractor and employer of workmen to observe such of the requirements in Pt I of these regulations as affect any workman engaged by him', and Pt I is headed 'Duties of Employers'. Plainly therefore they cast upon employers themselves the burden of fulfilling them. The only matter in dispute was whether he was excused under the terms of s. 137, sub-s.(1), of the Act. That section, however, imposed no obligation. It was aimed not at lessening the duties of the owner but at excusing him from certain sanctions if he failed to carry them out: admittedly it freed him from any criminal offence in certain events and the only dispute was whether it also excused him from liability to pay damages in a civil action. It was held that it did not" (1951) AC, at p 657 . (at p403)

4. I think that the duty the breach of which is alleged in the count in question is completely enacted by s. 27, sub-s. (1) (d). Section 27, sub-s. (5), of the present Act is concerned only with criminal liability. This sub-section leaves open the question whether the occupier has not complied with s. 27, sub-s. (1) (d), and is therefore liable in damages though he is not criminally responsible. For these reasons I would allow the appeal. (at p403)

5. In my opinion the judgment of the Court of Appeal should be set aside and in lieu thereof there should be judgment allowing the demurrers. (at p403)

KITTO J. This is an appeal from an order of the Court of Appeal division of the Supreme Court of New South Wales overruling demurrers to three pleas in an action brought by a person who was an employee in a factory against the occupier of the factory for damages for personal injuries caused by a contravention of par. (d) of s. 27 (1) of the Factories, Shops and Industries Act, 1962 (N.S.W.). The Act provides in s. 27 (1) that the occupier of a factory shall securely fence all dangerous parts of the machinery therein, and par. (d) adds that all such fencing shall be constantly maintained in position and in an efficient state while the parts required to be fenced are in motion or in use. The declaration in the action alleges, not that the machinery which caused the plaintiff's injuries was not securely fenced, but that the defendant, the occupier, did not constantly maintain the fencing in position in an efficient state while the parts required to be fenced were in motion or in use. (at p403)

2. Of the pleas demurred to, one alleged that the parts referred to in the declaration were necessarily exposed while in use for examination; another that they were necessarily exposed while in use for lubrication shown by examination to be immediately necessary; the third that they were necessarily exposed while in use for adjustment shown by examination to be immediately necessary ; and all three alleged that the period of exposure was no longer than was absolutely necessary for the purpose, and that the defendant took all precautions necessary to avoid the risk of injury to any person including the plaintiff. (at p404)

3. There is nothing in sub-s. (1) of s. 27 to make the facts alleged in any of the pleas available as a defence to an occupier who is sued for damages for a contravention of its provisions ; but sub-s. (4) makes an occupier who contravenes any of those provisions guilty of an offence and liable to a penalty, and sub-s. (5) adds that in any prosecution for a breach of the obligation imposed by par. (d) of sub-s. (1) it shall be a defence if the defendant proves that - (a) the parts required to be fenced were necessarily exposed while in motion or use for examination or for lubrication or adjustment shown by such examination to be immediately necessary ; and (b) the period of exposure was no longer than was absolutely necessary for such examination, lubrication or adjustment ; and (c) he took all precautions necessary to avoid the risk of injury to any person ; and (d) such other conditions as may be prescribed were complied with. The pleas take no account of the lastmentioned matter, but no point has been made of that in the present case. The question that is raised is whether proof by the occupier of the matters set out in sub-s. (5) is a defence in a civil action in respect of personal injuries caused by a contravention of par. (d) as well as in a prosecution for such a contravention. (at p404)

4. In the case of an enactment such as s. 27 (1), prescribing conduct to be observed by described persons in the interests of others who, whether described or not, are indicated by the nature of a peril against which the prescribed conduct is calculated to protect them, the prima facie inference is generally considered to be that every person whose individual interests are thus protected is intended to have a personal right to the due observance of the conduct, and consequently a personal right to sue for damages if he be injured by a contravention : see Whittaker v. Rozelle Wood Products Ltd. (1936) 36 SR (NSW) 204; 53 WN 71 . At least this is so where the peril provided against is one of personal injury and the relationship existing between the person enjoined and the person protected is one which is recognized by the common law as giving rise to a duty on the part of the former to take precautions for the safety of the latter : O'Connor v. S.P. Bray Ltd. [1937] HCA 18; (1937) 56 CLR 464, at p 478 . But at the outset of every inquiry in this field it is important, in my opinion, to recognize, notwithstanding the views expressed by some writers (see Mr. G. M. Fricke's article 76 Law Quarterly Review 240), that the question whether a contravention of a statutory requirement of the kind in question here is actionable at the suit of a person injured thereby is one of statutory interpretation. The intention that such a private right shall exist is not, as some observations made in the Supreme Court in this case may be thought to suggest, conjured up by judges to give effect to their own ideas of policy and then "imputed" to the legislature. The legitimate endeavour of the courts is to determine what inference really arises, on a balance of considerations, from the nature, scope and terms of the statute, including the nature of the evil against which it is directed, the nature of the conduct prescribed, the pre-existing state of the law, and, generally, the whole range of circumstances relevant upon a question of statutory interpretation : see Martin v. Western District of the Australasian Coal and Shale Employees' Federation Workers' Industrial Union of Australia (Mining Department) (1934) 34 SR (NSW) 593, at p 596 , and cases there cited. It is not a question of the actual intention of the legislators, but of the proper inference to be perceived upon a consideration of the document in the light of all its surrounding circumstances. Of course, as reported cases illustrate again and again, decisions given upon enactments which seem fairly comparable will not always be easy to reconcile with one another, for upon questions of inference some lack of uniformity of opinion is to be expected. But that is no justification, it seems to me, for seeing the task as other than a genuine exercise in interpretation. (at p405)

5. A particular difficulty arises where the enactment which prescribes the conduct is accompanied by the express provision of a criminal sanction for the enforcement of its requirements. On the prima facie principle that expressio unius est exclusio alterius there is ground for a countervailing inference of an intention that in the event of a contravention the specifically provided remedy shall be the only remedy: cf. Cutler v. Wandsworth Stadium Ltd. (1949) AC 398 . The task of deciding which inference is the true one was faced in relation to provisions of Factory Acts for the fencing of dangerous machinery as long ago as Groves v. Lord Wimborne (1898) 2 QB 402 , when it was held, upon consideration of the general scope of the Act and the nature of the statutory duty, the nature of the injuries likely to arise from a breach of the duty, the amount of the penalty provided in case of breach, and the kind of person upon whom it might be imposed (see per Vaughan Williams L.J. (1898) 2 QB, at p 416 ), that the provision of a penalty was plainly intended by way of addition to the individual's remedy by action for damages. (at p406)

6. Where a statute exhibits that intention and contains a provision which in terms provides only that proof of specified facts shall afford a defence or defences in a prosecution, there is no principle or authority of which I am aware upon which it can be held, without aid from some other provision of the statute, that an intention may be inferred to the effect that proof of those facts shall absolve a defendant from civil liability for the contravention. It is surely a large proposition that what is expressed only as relating to the sanction of a criminal prosecution is really meant as an alteration of the very obligation itself, notwithstanding that the provision which creates the obligation is left standing in unqualified terms. Proof of the specified facts in a prosecution will, of course, lead to the dismissal of the charge; but, while the dismissal will establish that the alleged contravention of the provision creating the obligation, even if proved, was not an offence against the statute, it will not establish that the conduct relied upon by the prosecutor as having been a contravention was not in fact a contravention. It seems to me that the distinction between, on the one hand, providing defences to a prosecution for not observing a required course of conduct and, on the other hand, providing exemptions from the requirement to observe that course of conduct is so obvious and so fundamental that only a very special context could ever justify a decision that an enactment which in its express terms is directed only to the former is intended sub silentio to achieve also the latter: cf. per Lord Wright and Lord Porter in Potts (or Riddell) v. Reid (1943) AC 1, at pp 24, 25, 30-32 . I respectfully doubt whether either Lord Atkinson in Watkins v. Naval Colliery Co. (1897) Ltd (1912) AC, at p 705 or Lord Kinnear in Butler (or Black) v. Fife Coal Co. Ltd. (1912) AC 149, at p 165 , thought otherwise. Their Lordships were concerned in these cases with enactments in markedly different terms from those of s. 27, as was this Court in Meyer Heine Pty. Ltd. v. China Navigation Co. Ltd. [1966] HCA 11; (1966) 115 CLR 10 . (at p406)

7. The decision in Groves v. Lord Wimborne (1898) 2 QB 402 was given in relation to a section in a statute of the United Kingdom which, though it was the precursor of the present New South Wales s. 27, differed from it in significant respects. It was s. 5 of the Factory and Workshop Act, 1878 (41 & 42 Vict. c. 16) as amended by s. 6 (2) of the Factory and Workshop Act, 1891 (54 & 55 Vict. c. 75). The provision in that section corresponding with par. (d) of the New South Wales s. 27 (1) had at the end of it some words of qualification: it required only that all fencing be constantly maintained in position in an efficient state while the parts required to be fenced were in motion or use "for the purpose of any manufacturing process". The freedom which this qualification admitted evidently proved unsatisfactory; for s. 7 (3) of the Factory and Shop Act, 1895 (58 & 59 Vict. c. 37) omitted the words of qualification and put in their place words of exception which eventually (by an amending Act of 1901, 1 Edw. 7 c. 22) came to read: "except where they are under repair, or under examination in connexion with repair, or are necessarily exposed for the purpose of cleaning or lubricating or for altering the gearing or arrangements of the parts of the machine." (at p407)

8. In New South Wales the provision as to maintaining fencing while dangerous parts of machinery are in motion or in use contained what I have called the qualifying words until 1962. Thus the latest Act previously in force, which was the Factories and Shops Act, 1912 as amended by Acts of 1946 and 1956, provided in par. (d) of s. 33 (1) that "all fencing shall be constantly maintained in an efficient state while the parts required to be fenced are in motion or in use for the purpose of any manufacturing process". It was under this Act that in 1943 a question arose, as it had in England also, whether the requirements as to the fencing of dangerous machinery should not be interpreted as applying only within the limits of what might be reasonably practicable, so as not to have the effect of prohibiting the use of machinery which fencing would make commercially or mechanically useless. A survey of the history of this question up to 1952 may be found in the judgment of DIXON C.J. in Dunlop Rubber Australia Ltd. v. Buckley [1952] HCA 72; (1952) 87 CLR 313, at pp 318, 319 . The solution which has been evolved in England by Parliament and the courts between them need not here be considered, though to the decisions referred to by DIXON C.J. may be added those cited in Halsbury's Laws of England, 3rd ed., vol. 17, par. 128, p. 77. In New South Wales it was held by the Supreme Court in 1943 that the fencing provisions (in s. 33), read in the light of other provisions of the Act, should be construed, not as imposing upon the occupier of a factory an absolute obligation, but as imposing only an obligation to do what was reasonably possible consistently with the machinery being used: Inglis v. N.S.W. Fresh Food & Ice Co. Ltd. (1943) 44 SR (NSW) 87, at p 95 . Thereupon the legislature, by Act No. 17 of 1946, s. 2 (f) (i), amended s. 33 by inserting a provision in the terms now found in s. 27 (2) of the 1962 Act: "The duty imposed on the occupier of a factory by this section shall be an absolute duty, in no way qualified by any other provision of this Act." It is important to notice what was the duty which was thus declared absolute. It was the duty imposed by the section; and that meant, as regards par. (d) of sub-s. (1), the duty to maintain fencing constantly in position and in an efficient state while the parts required to be fenced were in motion or use for the purpose of any manufacturing process. There was no sub-s. (5). An occupier had no defence to a prosecution if he contravened the absolute requirement which was imposed by par. (d) as read by itself, and of course he had no defence to a civil action for damages if by the contravention a person were injured. (at p408)

9. It was in this state of affairs that the 1962 Act was passed. It repealed the 1912 Act and enacted in s. 27 a set of provisions broadly similar to those of the former s. 33 but with important differences. As regards par. (d) the English precedent was followed to the extent of omitting the qualifying words "for the purpose of any manufacturing process", but, most significantly, not to the extent of putting any words of exception or qualification in thier place. Instead, sub-s. (5) was enacted, its four paragraphs (though not its introductory words) being expressed in terms not dissimilar from those of the English exception but in a more modern form evidently taken from s. 16 of the Factories Act, 1937 (U.K.). The decision to leave the statement of duty in par. (d) of sub-s. (1) standing in absolute terms, and to refrain from dealing with the special cases of examination, lubrication and adjustment save by providing defences in a prosecution, could not have been other than deliberate; for not only did the draftsman have the English legislation before him but he had also before him pars. (a), (b) and (c) of s. 27 itself, each of which contained its own built-in qualification. (at p408)

10. It seems to me extremely difficult, to say the least, to hold in the face of this course of legislation that sub-s. (5) implies the very qualification of sub-s. (1) (d) which the legislature so studiously refrained from making, and which the introductory words of sub-s. (5) itself impliedly deny. (at p408)

11. The proper conclusion, in my view, is that sub-s. (5) intends to qualify sub-s. (4) only, so that the full operation of sub-s. (5) is seen if the two provisions are read together as meaning that an occupier who contravenes any of the provisions of sub-s. (1) is guilty of an offence unless he proves the matters set out in sub-s. (5). As so read, it does not reduce or qualify the duty which sub-s. (1) (d) creates. One result is that the reference in sub-s. (2) to the duty imposed by "this section" is a reference to the duty imposed by sub-s. (1), as it was when the provision was first passed in 1946; and the strong probability that this is the true intention lends additional support to the conclusion above stated. (at p409)

12. In my opinion the pleas are bad and the appeal should be allowed. (at p409)

TAYLOR J. The pleadings in question in this appeal have already been sufficiently referred to in the reasons of Kitto J. and need not be repeated. As I see it the question which arises is concerned with the identification of the duty which s. 27 of the Factories, Shops and Industries Act, 1962 (N.S.W.) creates. It is not suggested, and could not be suggested, that a breach of the duty, whatever it may be found to be, will not render an occupier of a factory liable in damages if personal injury to an employee results from the breach. But it is important to identify with precision what the duty is. I further observe, though perhaps unnecessarily, that where, as here, an intention is imputed to a legislature to confer a right of action in respect of injuries resulting from a breach of statutory duty, the duty is one and the same as that for breach of which a prescribed penalty may be imposed. As DIXON J. observed in O'Connor v. S.P.Bray Ltd. [1937] HCA 18; (1937) 56 CLR 464, at pp 477, 478 : "The received doctrine is that when a statute prescribes in the interests of the safety of members of the public or a class of them a course of conduct and does no more than penalize a breach of its provisions, the question whether a private right of action also arises must be determined as a matter of construction. The difficulty is that in such a case the legislature has in fact expressed no intention upon the subject, and an interpretation of the statute, according to ordinary canons of construction, will rarely yield a necessary implication positively giving a civil remedy. As an examination of the decided cases will show, an intention to give, or not to give, a private right has more often than not been ascribed to the legislature as a result of presumptions or by reference to matters governing the policy of the provision rather than the meaning of the instrument. Sometimes it almost appears that a complexion is given to the statute upon very general considerations without either the authority of any general rule of law or the application of any definite rule of construction . . . In the absence of a contrary legislative intention, a duty imposed by statute to take measures for the safety of others seems to be regarded as involving a correlative private right, although the sanction is penal, because it protects an interest recognized by the general principles of the common law. After the full discussion of the authorities by Jordan C.J. in Martin v. Western District of the Australasian Coal and Shale Employees' Federation Workers' Industrial Union of Australia (Mining Department) (1), (1934) 34 SR (NSW) 593, at p 596 et seq; 51 WN (NSW) 203, at p 204 and Whittaker v. Rozelle Wood Products Ltd. (1936) 36 SR (NSW), at p 207 et seq; 53 WN (NSW), at pp 71, 72 , it would be superfluous to refer to them. Whatever wider rule may ultimately be deduced, I think it may be said that a provision prescribing a specific precaution for the safety of others in a matter where the person upon whom the duty laid is, under the general law of negligence, bound to exercise due care, the duty will give rise to a correlative private right, unless from the nature of the provision or from the scope of the legislation of which it forms a part a contrary intention appears" (1937) 56 CLR, at pp 477, 478 . (at p410)

2. I do not, of course, mean to say that civil liability merely follows upon criminal liability for cases occur where the person upon whom the duty is imposed is entitled to exonerate himself from the penal consequences of the breach by a process akin to confession and avoidance. I refer particularly to cases such as Potts (or Riddell) v. Reid (1943) AC 1 , and Gallagher v. Dorman, Long & Co. Ltd. (1947) 2 All ER 38 which show that civil proceedings for damages for a breach of such a duty may succeed although penal proceedings are bound to fail. In the earlier case the widow of a deceased workman brought an action against the latter's former employer alleging that his death had been caused by a breach of reg. 7 of the Building Regulations, 1926 (U.K.), (which were continued in force by the Factories Act, 1937 (U.K.), s. 159) in the composition of a "working platform" upon which the deceased was working at the time when he sustained his fatal injuries. One question which arose was whether s. 137 of the Act provided an answer to the widow's claim. The relevant portion of that section was in the following terms:

"(1) Where the occupier or owner of a factory is charged with an offence under this Act, he shall be entitled, upon information duly laid by him and on giving to the prosecution not less than three days' notice in writing of his intention, to have any other person whom he charges as the actual offender brought before the court at the time appointed for hearing the charge; and if, after the commission of the offence has been proved, the occupier or owner of the factory proves to the satisfaction of the court -

(a) that he has used all due diligence to enforce the execution

of this Act and of any relevant order or regulation made

thereunder; and

(b) that the said other person had committed the offence in

question without his consent, connivance, or wilful default,

that other person shall be summarily convicted of the offence, and the occupier or owner shall not be guilty of the offence, and the person so convicted shall, in the discretion of the court, be also liable to pay any costs incidental to the proceedings." (at p411)

3. It was held that the employer could not avoid his civil liability by proof of the matters specified in the section; proof of those matters could operate to exonerate an occupier from the penalty prescribed by the Act only "after the commission of the offence" had "been proved". Speaking of this case in Harrison v. National Coal Board (1951) AC 639 Lord Porter said: "The Building Regulations, 1926, the construction of which was in question, in terms imposed such an obligation. They are introduced by the words 'It shall be the duty of every contractor and employer of workmen to observe such of the requirements in Pt I of these regulations as affect any workman engaged by him', and Pt I is headed 'Duties of Employers'. Plainly therefore they cast upon employers themselves the burden of fulfilling them. The only matter in dispute was whether he was excused under the terms of s. 137, sub-s. (1), of the Act. That section, however, imposed no obligation. It was aimed not at lessening the duties of the owner but at excusing him from certain sanctions if he failed to carry them out: admittedly it freed him from any criminal offence in certain events and the only dispute was whether it also excused him from liability to pay damages in a civil action. It was held that it did not" (1951) AC, at p 657 . With these observations in mind I set out the provisions of s. 27 of the Factories, Shops and Industries Act, 1962:

"27. (1) The occupier of a factory shall securely fence all dangerous parts of the machinery therein, and with respect to such fencing the following provisions shall have effect -

(a) every flywheel directly connected to any prime mover,

and every moving part of any prime mover shall be

securely fenced whether the flywheel or prime mover is

situated in an engine-house or not: Provided that every

part of electric generators, motors and rotary converters,

and every flywheel directly connected thereto, shall be

securely fenced unless it is in such a position or of such

construction as to be as safe to every person employed

in the factory as it would be if securely fenced;

(b) every wheel-race not otherwise secured shall be securely

fenced close to the edge of the wheel-race;

(c) every part of the transmission machinery and every

cog-wheel shall either be securely fenced or be in such

position or of such construction as to be as safe to every

person employed in the factory as it would be if securely

fenced;

(d) all fencing shall be constantly maintained in position in an

efficient state while the parts required to be fenced are

in motion or use.

(2) The duty imposed on the occupier of a factory by this section shall be an absolute duty, in no way qualified by any other provision of this Act.

(3) In this section 'factory' includes, in addition to any premises which constitute a factory as defined in section four of this Act, any building in which sheep are shorn by machinery.

(4) Any occupier of a factory who contravenes any of the provisions of subsection one of this section shall be guilty of an offence against this Act and be liable to a penalty not exceeding three hundred pounds.

(5) In any prosecution for a breach of the obligation imposed on an occupier by paragraph (d) of subsection one of this section it shall be a defence if the defendant proves that -

(a) the parts required to be fenced were necessarily exposed

while in motion or use for examination or for lubrication

or adjustment shown by such examination to be

immediately necessary; and

(b) the period of exposure was no longer than was absolutely

necessary for such examination, lubrication or

adjustment;

and

(c) he took all precautions necessary to avoid the risk of

injury to any person; and

(d) such other conditions as may be prescribed were complied

with." (at p412)

4. The particular allegation in the appellant's declaration is that the respondent failed in the duty specified by sub-s. (1) (d) - that the respondent did not constantly maintain all fencing on the said machine in position in an efficient state while the parts required to be fenced were in motion or use. The question is whether the respondent is civilly liable if such parts were necessarily exposed while in motion or use for examination or for lubrication or adjustment shown by such examination to be immediately necessary and if the period of exposure was no longer than was absolutely necessary for such examination lubrication or adjustment and if the appellant took all precautions necessary to avoid the risk of injury to any person. The pleas demurred to tender these issues of fact and, in order to deal with the substance of the matters, I shall also assume that additionally, they allege, in effect, that the respondent also complied with other specified prescribed conditions, or, that there were no other applicable prescribed conditions. The answer to the question of substance depends, of course, upon whether sub-s. (5) operates in conjunction with the other provisions of the section to define the duties imposed upon an occupier by the section. (at p413)

5. For the appellant it is pointed out that by force of sub-s. (2) the duty imposed upon the occupier by the section is an absolute duty and in no way qualified by any other provision of the Act, that sub-s. (4) provides a penalty for contravention of the section and that sub-s. (5) speaks only of a defence available in any prosecution for a breach of the obligation imposed on an occupier by paragraph (d) of sub-s. (1). (at p413)

6. Sub-section (2) was originally introduced into the Factories and Shops Act, 1912 after the decision in Inglis v. N.S.W. Fresh Food & Ice Co. Ltd. (1943) 44 SR (NSW) 87 , where, in effect it was held that the duty imposed upon an occupier of a factory by s. 33 (3) of that Act was not absolute; the obligation cast upon him by the Act as it then stood was to see that every part of the mill-gearing and every cog-wheel was so fenced or in such a position or so constructed as "to be as safe as is reasonably possible, for careless as well as for careful workers, consistently with the machine being used". From the decision in that case this Court refused leave to appeal. The amendment was made I do not doubt to make it clear that the duties imposed by the section as it then stood were not to be regarded as qualified in any way. Section 33 of the 1912 Act was the progenitor of s. 27 of the present Act and the same provision has been carried into it. But it should be noticed that the present sub-s. (2) speaks, not of the duty imposed by sub-s. (1) but of the duty "imposed on the occupier of a factory by this section". Its provisions, therefore, do not assist in the identification of the duty; it merely provides that the duty, whatever that may be found to be upon an examination of the section as it now stands, "shall be an absolute duty". (at p414)

7. Sub-section (4) of the present section is couched in the same terms as sub-s. (2) of s. 33 of the earlier Act and it was introduced into that Act in 1946. Previously the section had been silent on the question of penalty though, since a contravention of s. 33 would have meant that the occupier had not kept his factory in conformity with Pt II of the Act, a penalty would have been recoverable pursuant to s. 56 (see Armitage v. Ashbury (1914) 14 SR (NSW) 42 ). Subsection (5) made its first appearance in the Factories, Shops and Industries Act, 1962 but it is of importance to notice that it was but one of two interrelated changes made in the section when the 1962 Act was passed. Previously the duty created by sub-s. (1) (d) of the earlier Act was created by the words "all fencing shall be constantly maintained in an efficient state while the parts required to be fenced are in motion or use for the purpose of any manufacturing process". In the 1962 Act the italicized words were omitted and, additionally, the present sub-s. (5) was introduced. The terms of these provisions may be contrasted with s. 10 (1) (d) of the Factory and Workshop Act, 1901 (Eng.): "(d) All fencing must be constantly maintained in an efficient state while the parts required to be fenced are in motion or use, except where they are under repair or under examination in connection with repair, or are necessarily exposed for the purpose of cleaning or lubricating or for altering the gearing or arrangements of the parts of the machine." Apparently the local legislature thought more particular provision should be made with respect to the obligations of an occupier whilst parts of a machine required to be fenced should be necessarily exposed while in motion or use for examination, lubrication or adjustment. Accordingly sub-s. (5) provides that not only should it be made to appear that the exposure, while the parts are in motion or use, is necessary for examination or, for lubrication or adjustment, immediately necessary, but also that the exposure shall be no longer than is absolutely necessary for such purposes, that the occupier shall take all reasonable precautions necessary to avoid the risk of injury to any person and that he shall comply with such other conditions as may be prescribed. The introduction of these more particular provisions in the form of a simple exception as in the English Act would have presented an awkward problem of draftmanship and, no doubt, it was because of this that the provisions were made the subject of a separate substantive enactment. But what is more important is that sub-s. (5) itself prescribes standards of care which must be observed while parts required to be fenced are necessarily exposed while they are in motion if the sub-section is to operate. It is as well to remember that this sub-section made its appearance contemporaneously with the disappearance from sub-s. (1) (d) of the words with which it formally concluded - "for the purpose of any manufacturing process" - a phrase particularly appropriate to a dangerous machine not used for the purpose of any manufacturing process. Then, it is implicit in the sub-section that if an occupier is charged with a breach of sub-s. (1) (d) and shows that the circumstances prescribed by par. (a) of sub-s. (5) existed and that he has fulfilled the conditions prescribed by pars. (b), (c) and (d), he is not guilty. Having regard to the history and form of the legislation and to the character and content of sub-s. (5) itself it seems to me that the sub-section appears, substantially, as a provision substituted for the concluding words of its progenitor, that, as such, it is partly definitive of the duty imposed upon the occupier of a factory by the section as a whole and that it does not merely provide a means of exoneration to an occupier who is proved to have committed an offence. I do not think that it is of any significance that the section speaks of a prosecution for the breach of an obligation imposed by par. (d) of sub-s. (1) for the section at all stages is silent on the subject of civil liability; this form of liability rests upon the intention to be imputed to the legislature and to my mind it is not surprising or significant that, having been silent in the first instance upon the subject of civil liability, the legislature made no reference to it in sub-s. (5). In my view therefore an occupier who is able to establish that it was necessary to expose parts of a machine required to be fenced while they are in motion or use for examination or for lubrication or adjustment shown by such examination to be immediately necessary does not incur a statutory liability for injury if it appears that he has observed the requirements specified in pars. (b), (c) and (d) of the sub-section. (at p415)

8. However, the pleas, it seems to me, are defective for the reason that they do not sufficiently allege a compliance with the provisions of sub-s. (5). It is a question of fact as to whether "other conditions" have been prescribed for the purposes of par. (d) of the sub-section. If they have it is for the respondent to allege that he complied with them on the occasion in question whilst, on the other hand, if no "other conditions" have been prescribed the pleas should allege that fact. For this reason the appeal, in my opinion, should be allowed. (at p416)

WINDEYER J. The Factories, Shops and Industries Act, 1962 (N.S.W.), s.27, does not in terms create a right of action for damages for breach of the duty it creates. The statutory sanction for the performance of the duty is that a breach is made a penal offence. From this a civil right arises by implication according to the wellknown principles by which an intention that this should be so is imputed to the legislature. As Lord Reid expressed it in Harrison v. National Coal Board (1951) AC 639, at p 685 , "It is now . . . settled law that, if an employer is made criminally liable in respect of something which affects the safety of his workmen, civil liability to an injured workman will follow". His Lordship later described this as a "civil liability arising out of criminal liability". It has constantly been said that in such cases the civil right arises as a correlative of the criminal liability. But in this case it is contended by the appellant that a civil liability can, by virtue of the statute, arise in circumstances in which the employer is expressly exonerated from criminal liability. Whether this is so or not depends upon the construction of the statute. If a civil action can arise from facts which would not create criminal liability, it must be because the statutory obligation differs in the one case from the other - that the one is not the correlative of the other. Is that so here? The appellant seeks to make sub-s. (5) of s. 127 operate only in cases of penal proceedings and as not touching civil liability. The words "in any prosecution" refer to criminal proceedings. But the question is what is the scope of the duty which the Act creates. It is not incompatible with the form of the Act that the limits of the duty are defined by reference to criminal proceedings. One would not expect it to be otherwise for the civil liability implicit in the Act flows from the explicit criminal liability. It is true that the limits of the duty are defined by exonerations and not by means of exceptions or provisos. But the scope of the duty for breach of which a civil action will lie is to be found from the substance of s. 27 read as a whole. If at any time the fence of a machine were removed in the circumstances and for the purposes described in sub-s. (5), it could not be said that the factory occupier was then committing a breach of his duty under the Act. Nor could it be said from that fact alone that he was negligent; quite the reverse. Unless he was in breach of his statutory duty or was negligent no action would lie. (at p416)

2. I consider that the appeal should be dismissed. (at p417)

OWEN J. I agree with the reasons of my brother Kitto and would therefore allow the appeal. (at p417)

Judgment of the Court of Appeal of the Supreme Court of New South Wales set aside with costs. Order that in lieu thereof there be judgment for the plaintiff on each of the three demurrers.