Dunlop Rubber Australia Ltd v Buckley [1952] HCA 72

High Court of Australia Dixon C.J. McTiernan, Webb, Fullagar and Kitto JJ. Dunlop Rubber Australia Ltd v Buckley [1952] HCA 72

ORDER Appeal allowed with costs. Order of the Full Court of the Supreme Court of New South Wales discharged. In lieu thereof order that the appeal to the Full Court be dismissed with costs and that the verdict and judgment for the defendant company be restored.

Cur. adv. vult.

The following written judgments were delivered:—

Dec. 19 Dixon C.J.

This is an appeal by leave from an order of the Supreme Court of New South Wales setting aside a verdict for the defendant in an action and directing a new trial. The action was brought by an employee against his employer for personal injuries suffered while at work. His work was that of a mill hand in a rubber works and at the time of the injury the operation in which he was engaged was that of passing pieces of rubber through a rolling mill. The cause of action which at the trial was submitted to the jury was for breach of statutory duty in failing to fence a dangerous machine. The cause of action depends on s. 33 of the Factories and Shops Act 1912-1950 N.S.W.. That section provides that the occupier of the factory shall securely fence all dangerous parts of the machinery therein. The provision then goes on to speak in detail of specified parts of machines and to require that 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.

The question, differently decided by this Court in Bourke v. Butterfield & Lewis Ltd. [1] and by the House of Lords in Caswell v. Powell Duffryn Associated Collieries Ltd. [2] , whether contributory negligence is an answer to a cause of action for a breach of statutory duty was set at rest in New South Wales by the Statutory Duties (Contributory Negligence) Act 1945 which was passed after the decision in Piro v. W. Foster & Co. Ltd. [3] . Section 2 (1) of that Act provides that contributory negligence on the part of a person who has sustained personal injury shall not be a defence to an action for damages for that injury founded on a breach of duty imposed on the defendant for the benefit of a class of persons of which the person so injured was a member at the time the injury was sustained.