Hamilton v Nuroof (WA) Pty Ltd [1956] HCA 42

High Court of Australia Dixon C.J. Williams, Fullagar, Kitto and Taylor JJ. Hamilton v Nuroof (WA) Pty Ltd [1956] HCA 42

ORDER Appeal allowed with costs. Judgment of the Supreme Court of Western Australia discharged. In lieu thereof order that judgment in the action be entered for the plaintiff for damages to be assessed and costs. Remit the cause to the Supreme Court for the assessment of damages.

Cur. adv. vult.

The following written judgments were delivered:—

Aug. 10 Dixon C.J. and Kitto J.

The question for consideration upon this appeal is whether a workman, who in the course of handling a bucket of heated bitumen spilt it over the side of his face and his arms, has established that his employer is liable to him in damages for the injuries which he sustained on the ground of a failure in the employer's duty of due care for the safety of a workman employed by him. Wolff J. who tried the workman's action against his employer for damages, found for the defendant substantially on the ground that no particular danger to any ordinary workman attended the method adopted for handling the bitumen and the duty to take reasonable care to safeguard the workman from risk of injury in performing his work did not require the employer to adopt any other method or take any other measures. It is from this decision that the appeal comes.

The more material facts are few and simple. The employer, the defendant, had contracted to repair with bitumen certain flat roofs at the top of a building of six storeys. The sixth storey was set back from the fifth and was surmounted by a motor generator room against one wall of which an iron room or shed had been constructed. The work included the use of bitumen on the roof of the motor generator room. Three or four buckets would be sufficient. It was found convenient to heat the bitumen on the open space on the roof of the fifth floor. Thence it was necessary to lift the heated bitumen to the roof of the motor generator room. For that purpose a bucket or drum was used capable of containing four gallons. Two-thirds full it weighed forty pounds. It might have been possible by the use of a rope to pull it up from the fifth floor directly to the top of the motor generator room, but perhaps, with the length of rope necessary, there was a risk of the bucket swaying and striking the wall, which would have been disfigured if any of the bitumen were spilt upon it. The course was preferred of raising the bucket by means of a rope to the sixth floor and then passing it by hand to the roof of the motor generator room. A fixed vertical ladder of iron gave access to this roof from the roof of the sixth floor. The iron shed was built next to the ladder. The course preferred was to carry the bucket of hot bitumen up the ladder, place it on the roof of the iron shed and thence pass it by hand up to a workman on the roof of the motor generator room. The roof of that room was twelve feet six inches above the roof of the sixth floor and the roof of the iron shed was five feet eight inches lower. The work began on the day the plaintiff received his injuries, 17th May 1954, and it was only on that day the plaintiff, who describes himself as a labourer, was taken into the employment of the defendant. The foreman conveyed the plaintiff and a leading hand, together with the gear required, to the scene of operations, where he left them, telling the plaintiff to take instructions from the leading hand. When the bitumen was heated, the leading hand ladled from the cauldron about three gallons into a four gallon bucket or drum having an improvised looped handle of wire of heavy gauge. He attached a rope to the bucket and hauled it up by hand to the sixth floor to which he had ascended by another fixed ladder. Under the directions of the leading hand the plaintiff took up a position on the roof of the shed. The leading hand then lifted the bucket of hot bitumen to the level of that roof by climbing the adjacent ladder holding the bucket by the handle. Then he handed it to the plaintiff and climbed on up the ladder to the roof of the motor generator room. The plaintiff then lifted the bucket in front of him holding the sides of the handle by his hands. The leading hand, from the roof of the motor generator room, took the centre of the handle and lifted the bucket to the roof where he stood. That roof projected from, or overhung, the wall about six or seven inches. The bucket having been lifted to the roof by the leading hand, the plaintiff climbed up there by the ladder and helped him spread the bitumen it contained. Two buckets of hot bitumen were lifted by this procedure in safety from the fifth floor where the cauldron stood to the roof of the motor generator room. But as the plaintiff stood on the roof of the iron shed and raised the third bucket of hot bitumen in front of him disaster came. The bitumen spilt over the side of his face, from above the ear drum, and over his hands and forearms. His injuries were very severe. How it happened is uncertain. On this third occasion the plaintiff had himself lifted the bucket of bitumen up the ladder to the roof of the shed, because the leading hand had something to attend to on the roof of the motor generator room. In his evidence the plaintiff said that after placing the bucket on the roof of the shed he called out to the leading hand asking him if he was ready. On his answering yes, the plaintiff lifted the bucket as he had done before but it was not taken from him at once. His arms ached from the weight; he thought he got a splash of bitumen in his eye, the shock made him jump and splash the bitumen all over him; he remembered no more till he found himself in hospital. To an insurance adjuster he gave a not very different account: "My arms ached with the strain and, in readjusting the weight overhead, the hot bitumen splashed on my face. The resulting shock made me sway still more with more bitumen splashing over me and I dropped the bucket in extreme pain." A letter from his solicitors spoke of his "lifting the tin above his head" and of its being upset in the course of his doing so; and the plaintiff's pleading stated that "a tin containing molten bitumen which he had lifted above his head became upturned." In cross-examination the plaintiff said that he did not remember swaying but he got a splash and the shock was so severe that he jumped. The wall above the tin shed shows an extensive stain from and including the projecting ledge of the roof down. Wolff J., who caused some bitumen to be heated so that its tendency to splash could be ascertained by experiment, found himself unable to account for the plaintiff's receiving, as the plaintiff described it, a splash of bitumen in his eye or on his face, and his Honour said that on the evidence he was unable to find precisely how the accident did occur. The difficulty of ascertaining exactly why the bitumen was poured over the plaintiff was not lessened by the failure of the plaintiff and of the defendant to call the leading hand as a witness. There can, however, be no doubt that somehow in his effort to transfer the bucket from the roof of the shed to the roof where the leading hand stood the contents were spilled and the plaintiff's face and arms were seriously injured by the hot bitumen. It is, however, by no means certain that it was necessary for him to lift the bucket above his head or that he did so. He is a man about six feet in height; if the leading hand bent low he might have grasped the handle when it was level with the roof, and that was only five feet eight inches above the roof on which the plaintiff stood.