1978/88 W. M. Houston, Govt. Print. Met, IN THE HIGH COURT OF AUSTRALIA © SHB COMMONWEALTH OF AUSTRALIA 18/4 REASONS FOR JUDGMENT Judgment delivered at... SPOOF... on... teesday, Sth May 1959 We Judgment for the plaintiff in the suz of £2,79Z.t%e Sy with conte, ee NT Ve Ve This is an action for damages for breach of statutory duty and negligence which stems from an accident which happened at the defendant's brick works near Canberya on the 9th July 1953, when the plaintiff's left hand was severely mutilated by being caught under the press of 4 brick-making machine which started working when he did not expect it to do a0. The plant unit with which this action is concerned comprises the brick-meking machine itself and the electric motor that operates it. The electric motor is started first by a button and then, to bring the machine inte operation a& lever is pulled whieh is so situated that persons in front of the machine are not visible from it, although it fe only sone few feet aways 'The plaintiff, on the morning in question, was to | work at the front of the machine, his job, together with a fellow employee named Smith, being to take avay from a tray which was part of the machine and put in a barrow for removal, bricks made by the machine by pressing dirt, water and oi] by means of a press with plates heated to prevent adhesion. The machine deposited the bricks on the tray. Men doing the plaintiff's job ere called "machine men taking off", 'the other members of the crew of the machine, on the morning in i question, were Watt, the machine san in charge, and Souerfield,) the mixing man. after the machine had compressed the bricks, 2. they came out two at a time on to the tray through an aperture which gave entrance to a circulating table fitted with clot boxes which received dirt from the bottom of a pug mill where it was mixed, and te the press which compressed the bricks in the clot boxes. The plaintiff had his hand and arm in this aperture when he was injured. The statutory instruments which were alleged to have been breached were the Machinery Ordinance {949 of the australian Capital Territory and regulations made thereunder called the Inspection of Machinery Regulations (No. 7 of 1950)«. This Ordinance and these Regulations bind the Crown except where the contrary intention appears. Regulation 23(2) is as follewst= "A contravention of, or failure to comply with, these Regulations does not give rise to any civil right, reuedy or liability which would not exist if these Regulations _ bad not been made." This provision, it seems to me, is a complete answer to the claim for breach of statutory duty and leaves the plaintiff to his action fer negligence, In j deciding whether or not there was negligence, however, regard | must be had to the Regulations, and the most material provision for present purposes is Regulation 13(1) which ts in these texass~ "The oceupier of premises shall securely fence all dangerous parts of machinery which is in or upon the premises." The negligence alleged vas, in the first place, a failure by the defendant to fence securely the parts of the brick-making machine which crushed the pleintiff's hand and which vere clearly dangerous and, in the second place, the atarting of the machine unexpectedly and vithout proper warning. . 3e 'The machine in question was installed about six months before the accident occurred, and at the time vhen the accident occurred there was no fence or guard whatever in front of the aperture te which I have referred. There had been a fence there some time earlier but that had been taken away because, it seens, it interfered with the movement of bricks along the inclined shute which led from the place where the bricks were made in the machine to the tray. After the accident, a similar, but narrower, fence was provided, under which the bricks could move without touching.it. These fences would not stop a person from deliberately putting ' his hand inte the aperture but they would prevent his doing so inadvertently, partiqularly as the tray itself protruded about two feat from the opening, I am in no doubt that it was negligent to use the machine without any fence at all and I am far from satisfied that, with the fences referred to, the dangerous parts of the machine were securely fenced 4 se¢ Suith.vs chesterfield & District Cononerative Society Lide (1953) 1 WebeRe 370, For the plaintiff, however, it was sought to go further and say that, to comply with the Regulations, it was necessary for the defendant to install a guard to prevent the machine from operating at any time At would admit of entrance to the aperture. Hr. Ranch, who is the retired Chief Inspector for Factories and Shops of the New South wales Department of Labour and Industry, gave evidence that there were such guards in use on similar bricke making sachines in New South wales, but I am not prepared to accept this evidence and think that Mr. Ranch may well be be mistaken. fhe evidence of Hr. Binns satisfies me that Mr. Rench was mistaken about the Austral Brickworks and, having regard to the evidence of Mr. Bretnall, I am by no means satisfied that at Clark Kilns at Moorebank there is an Anderson brickewaking machine and that it is guarded. There is, of course, some uncortainty about the meaning of the phrase "securely fenced" in statutory instruments : seo Carmll vs Audzey Barclay € Sous Lids (1948) A.C. 477 and Burns ve Josenh Term @ Jona Lids (1951) 1 KB. 45+. Having regard to the authorities as they stand, it seems to we that the machine in question would be securely fenced if the presence of the fenes took away any foresceable risk te the person using it (John Summers & Sons ve Erost (1955) AsCe 740), and that this could probably be achicved without the devices that Mrs Ranch favours. It is, however, not necessary to proceed further with this enquiry because I find that the dangerous parts of the brick-making maching, on the day of the accident, were not fenced at all and that to have operated the machine without any fence was clearly negligent. I find, too, that there vas negligence in starting the machine without the starter being in a position to see that there was no danger to other menbers ef the crew and vithout giving them proper notification or warning of what he was about to de. Natt, as I have said, started the machine by operating the lever at a place where the front was not visible to him, and I have four versions of what warnings were given. The plaintiff says there was no warnings Watt says he told the plaintiff and Smith that he was about to start the machine and then he went te the starting clutch and called out "Right" 5e and then, after a pause, pulled the clutch and so started the machine; Smith says that Watt sang out simultaneously with starting the machine but gave no other warnings Somerfield says Watt called out "satech your hands" and then pulled the clutch into gear slowly and started the machine. On the whole, I find that Watt did not make the plaintiff aware that he was about to start the machine when he did and, as he started it, he called out but gave the plaintiff ne other warning. Although there may be some question whether the failure to fence the machine securely had anything to do with the plaintiff's injury, though I think it did, there is no doubt that the Silure to give an adequate warning caused, or at least contributed te, his injury and so the plaintiff is therefore entitled to his full damage, unless this should be reduced by reason of his contributory negligence. I turmy, therefore, to the question of contributory negligence. The accounts given by the plaintiff and by Smith about what the plaintiff was doing with his arm end hand in ; the pressing section of the machine are not without differencess indeed, the eviderice of each is not of one consistent pisos. The probability is that the plaintiff put his hand into the wachine to feel the temperature of the plates and then began to remove some dizt from the aperture and, while he was doing 90, Watt started the machine. The plaintiff says that a mizmte or two before he put his hand in the machine, Watt hed told him that the machine would not start for ten to fifteen minutes. I do not accept this as an accurate account of what took place and think it more probable that Watt did say be something to the effect that because the plates were not hot enough to make bricks, there would be some time to wait and during that time he would f111 up the boxes. It is not necessary, in explanation of this, to say more than that it was part of Watt's duty to operate the machine at the start ef the day's work to fill up boxes with dirt, and that this was done by starting the mehine with the lever and then stopping it as each set of boxes was filled, There vere twenty-two boxes and it takes about three minutes to fill ell of them, Watt said he told Dixon and Smith that he was about to start the maghine to fill up the boxes, but I do net think that he was as precise as that, The truth probably is as I have stated the matter earlier and that Dixon, not contemplating that Watt would start to fill up the boxes straight avay, put his hand into the machine and then Watt started the machine to fill up the boxes without any warning beyond a shout as he pulled the lever. The reason why the plaintiff put so little exphasis upon his testing the heat of the plete with his hand, which was quite outside the scope of his duties, and put so auch emphasis upon his cleaning dirt out of the aperture was pecause it was the practice at that time to clean dirt out of . the aperture with the hand and, although te de this cleaning was the job of the machine men in charge, {t was from time to time done by the machine man taking away, and this with the tacit approval of the foremany furthermore, in the absence of the machine man in charge, it was treated as part of the duty of the taking away man te clear away any dirt that etuck te the pletes or lodged in the aperture, 'the plaintiff said, a indeed, that when he began clearing avay the dirt, watt had left the machine, but I am not prepared to accept this. My conclusion is that the plaintiff took it upon himself to test the heat of the plates and, becoming aware of dirt in the aperture, he was in the process of clearing it out when Watt started the machine to fill up the boxes. In doing what he did, I think the plaintiff carelessly took a risk and did so without adverting to the possibility of the machine starting straight away to fill up the boxes. I consider, therefore, that the accident was the result of the combined negligence of the defendant and the plaintiff. I think, however, that the defendant's fault was substantially greater than that of the plaintiff, particularly by reason of the faet that the defendant did give sone countenance te the dangerous practice of the men putting their hands inte the aperture. My conglusion is that by reason of the fact that the dasage which the plaintiff suffered was the result partly of his own fault, his damages should be reduced by twenty per cent in accordanes with the Law Refors (iMisesllancous Provisions) Ordinanes 1955 of the Australian Capital Territory, secs 15+ I turn mow to assess damages. The plaintiff was, at the time of the accident, twenty-one years of age. Bis left, hand has been severaly mutilated. It has, in effect, been cut in half from the top joint of the middle finger to the wrist on the ulnar side, with the loss of two fingers, part of the middle finger, and part of the bottom of the hand. He has had to undergo surgical treatment and spend time in hospital, and his left hand is nov only about oneethird effective and will not Decome any more effective. He still suffers pain and is likely to continue to do so, particularly when the bony protruberances that have been formed at his wrist are knocked. Since returning to work, he has had many absences because of severe pain in the hand and wrist, usually following such a knock, and it eannet be said that this sort of trouble is over. He has gone back to work at the defendant's brickvoris, usually as a mix man and in that job be is satisfied, but, if he ever has to seek another job, he will be at a substantial @isadvantege because of his disability. 'This 1s the most serious aspect of his injury, although his injuries do interfere in a umber of ways with his enjeyment of life; for instanee, they prevent him from playing oricket and football, at which he excolled in a modest way, and the disfigurenent of his hand is a digadvantage to him and, te some extent, a source of enbarrassments Taking all. these things into account, I assess his general damages at £3,000. 0+ 0. Special dawages have been agreed at £490.18. 0, so that the total is £3,490.18. 0. This mest, for the reason I have previously given, be reduced by twenty por cent te £2,7920Te 5. There will be judgment for the plaintafr-for that amount, with costes