Waugh v Kippen

Waugh v Kippen - [1986] HCA 12 - HCA 1977 case summary — Zoe

[4]

The evidence discloses that on 7 April 1977 the appellant was engaged in welding cleats on rolled steel joists described as universal beams. Each beam was between 8.5 and 10 metres long and weighed about 310 kilograms. There were thirty beams in all and he had been occupied on the task for about three weeks. The task required each beam to be lifted by mechanical means on to two steel trestles. Each trestle was about 1.25 metres wide with the top on which the beam rested consisting of a piece of inverted angle iron, thereby presenting as small a surface as possible in contact with the beam. In order to weld the cleats on each beam it was necessary for the beam to be turned four times as it lay on the trestles. This was done by using a steel bar as a lever. The effect of turning a beam was to move it towards one side of the trestle so that it became necessary from time to time to slide the beam back towards the centre of the trestle. This was done by the appellant standing beside one end of a beam and using two hands to pull it towards him. No lifting was involved. The learned trial judge described these manoeuvres as simple tasks. He accepted evidence that levers of the type referred to in the case were in common use and that there was no need for more than one man using such a lever to turn a 10-metre long universal beam weighing 310 kilograms. The trial judge also found that the respondents' foreman, Mr. Holder, told the appellant that he could have assistance to turn the beams over; however, the parties now agree that there is no evidence to support that finding. At the same time the evidence of Mr. Sehmish, who was employed as a labourer, was to the effect that he assisted the appellant from time to time to turn the beams over and there is no reason to suppose that the appellant was not aware that he could call for assistance if he required it. With respect to the force required to slide the end of a beam across a trestle with a two-handed pull, the report of a survey made in 1980 by an ergonomics group at Surrey University in England established an acceptable limit for such a manoeuvre equivalent to a mass of 45 kilograms for a male person aged between forty-one and fifty years, with 50 kilograms as the limit for a male below forty-one years of age. The trial judge accepted the evidence of an engineer who estimated that the force employed by the appellant to slide one end of a beam across the trestle with a two-handed pull would be equivalent to a mass of 31 kilograms if the beam was supported by trestles which were placed at the same distance from each end of the beam and would range up to 36 kilograms if the trestles were so placed as to spread the weight of the beam unevenly. These estimates relate to a normal male person having no relevant disability.

[10]

Counsel for the appellant sought to rely upon two recent decisions of this Court in Turner v. South Australia and Castro v. Transfield (Qld) Pty. Ltd. [4] . But reference to these decisions serves to emphasize that while the principles to be applied in each case remain the same the circumstances of each case are necessarily different and render any attempt to draw a bland comparison unhelpful. In each of these cases the Court acted to restore the decision of the trial judge. In Turner it was common ground on the appeal to this Court that to attempt to lift a full drum of diesel fuel was an inherently dangerous action for one man. The Court held that the employer had failed to prescribe any system to protect a worker from that danger. Castro was a case which, as Gibbs C.J. said [5] , "involves no question of principle, but merely the application of settled principles to the facts". The worker sustained injury when he slipped and fell while carrying a very heavy oxygen bottle. The evidence showed that the worker was not aware that he was entitled to call on another worker on the site to help him and there was no evidence that the other workers were either obliged or willing to provide such assistance. The facts of each of these cases are clearly distinguishable from the present case. This is a case where the true picture of events depends on an evaluation by the trial judge of conflicting evidence, given many years after the events occurred. It is ultimately a matter of judgment whether, having regard to the very slight risk found to have existed, the respondents exercised sufficient care in the circumstances to fulfil their duty to provide a safe system of work. We are not persuaded that the trial judge was wrong in his conclusion. This makes it unnecessary for us to consider the submission advanced by counsel for the respondents that the trial judge erred in holding that the respondents were under a duty of care because his Honour relied, wrongly, on medical evidence which was not known to the respondents in coming to the conclusion that the risk of injury to the appellant was foreseeable.

[20]

The rule formerly accepted, that statutes creating offences are to be strictly construed, has lost much of its importance in modern times. In determining the meaning of a penal statute the ordinary rules of construction must be applied, but if the language of the statute remains ambiguous or doubtful the ambiguity or doubt may be resolved in favour of the subject by refusing to extend the category of criminal offences: see R. v. Adams [9] ; Craies on Statute Law, 7th ed. (1971), pp. 529-534. The rule is perhaps one of last resort. In the course of argument, the question arose whether the two principles of interpretation to which we have referred come into conflict in the present case and if so, how the conflict is to be resolved. If such a conflict was to arise, the court must proceed with its primary task of extracting the intention of the legislature from the fair meaning of words by which it has expressed that intention, remembering that it is a remedial measure passed for the protection of the worker. It should not be construed so strictly as to deprive the worker of the protection which Parliament intended that he should have: Harrison v. National Coal Board [10] , per Lord Porter; John Summers & Son Ltd. v. Frost [11] , per Viscount Simonds; McCarthy v. Coldair Ltd. [12] , per Denning L.J. In such a context the strict construction rule is indeed one of last resort. Furthermore, the process of construction must yield for all purposes a definitive statement of the incidence of an obligation imposed on the employer. The legislature cannot speak with a forked tongue. Although the standard of proof applicable to criminal proceedings for a breach of the obligation will differ from that applicable to civil proceedings and the law may provide specific defences by way of answer to a prosecution which have no relevance to civil proceedings (as in Sovar v. Henry Lane Pty. Ltd. [13] ), the elements that make up the obligation will be the same in each case. For example, in the present case one could not conclude in favour of an objective criterion of the likelihood of a risk of injury in the context of a criminal proceeding and a subjective criterion for the purposes of a civil action. 1. (1913) 17 C.L.R. 370, at p. 384. 2. (1976) 135 C.L.R. 569, at p. 576. 3. (1935) 53 C.L.R. 563, at pp. 567-568. 4. [1951] A.C. 639, at p. 650. 5. [1955] A.C. 740, at p. 751. 6. [1951] 2 T.L.R. 1226, at pp. 1227-1228. 7. (1967) 116 C.L.R. 397.

[30]

We must confess to some anxiety as to whether his Honour's conclusion can be sustained. There are some passages in the evidence of Mr. Holder and Mr. Sehmish which, if taken at their face value, suggest that the respondents ought to have been aware that a significant risk of injury to the appellant was likely if he was allowed to move the beams by hand and should have forbidden him to do so. It might also be contended that a proper respect for the rule should have prompted them to ascertain the nature and extent of any disability that he may have suffered. On the other hand, we have already referred to the evidentiary difficulties faced by the trial judge, including the emphatic denial by the appellant that he had ever complained about his back and the lapse of time between the incident and the trial with consequent memory failings on the part of the respondents' witnesses. In some respects the evidence is patently unsatisfactory. These considerations placed the trial judge, even more than is usually the case, in a position of advantage in evaluating the evidence and coming to a conclusion. In all the circumstances we are not prepared to disturb that conclusion. We are fortified in that stand by the consideration of the expert evidence touching the Surrey University study and the estimate of the force applied to perform the manoeuvre in which the appellant was engaged when he suffered the injury. As we read the evidence, the proper comparison is between a force of approximately 31 kilograms exerted by the appellant and an acceptable limit for a normal male person aged from forty-one to fifty years of age of 45 kilograms. Had the appellant been a year younger the acceptable limit would have been expressed as 50 kilograms. This evidence suggests that the force employed on the task of moving the beam was so far within the acceptable range for a normal male person as to require some more cogent indication of disability than a casual reference to "a crook back" in order to alert an employer to the likelihood of a risk of injury.

At a glance

Court

Decision date

Before

Source

Judgment (34 paragraphs)

Parties