Vozza v Tooth & Co Ltd

For the reasons given by Windeyer J. I agree that the appeal should be dismissed. The allegation that the defendant had been guilty of a breach of the duty of care owed by it to its employees because it had not installed machinery which would have obviated the necessity of handling bottles as they emerged from the pasteurizer found no support in the evidence. Nor is it possible to find evidence capable of justifying the further allegation that the defendant had failed to take reasonable care to preserve the plaintiff from injury because the gloves with which he had been supplied did not afford complete protection against fragments of glass from bursting bottles. No doubt some form of glove could have been devised which would have been impenetrable but there was a complete absence of evidence upon which it could have been found that a glove made of sufficiently stout material as to provide complete protection would have been reasonably adapted for use in the work which the plaintiff was required to perform, namely the rapid picking up and putting down of wet beer bottles, which were liable to burst if knocked or dropped, and the picking out of pieces of broken glass from amongst the bottles as they emerged from the pasteurizer.

In these circumstances it is unnecessary to consider an alternative submission made to the Full Supreme Court by counsel for the defendant that the fair trial of the action had been prejudiced by the conduct of counsel for the plaintiff. In fairness to the latter, however, I think I should say that I am unable to take the view that he deliberately acted in defiance of a ruling said to have been given by the learned trial judge at some earlier stage of the case. While criticism may fairly be made of some of the phrases that counsel used in his final address to the jury since in some respects they exceeded the bounds of fair advocacy, I see no reason to doubt that counsel genuinely believed that the issue to which his remarks were directed was one which would be left to the jury or at least had not already been ruled out.