Mummery v Irvings Pty Ltd [1956] HCA 45

High Court of Australia Dixon C.J. McTiernan, Webb, Fullagar and Taylor JJ. Mummery v Irvings Pty Ltd [1956] HCA 45

ORDER Appeal dismissed.

Cur. adv. vult.

The following written judgments were delivered:—

Aug. 15 Dixon C.J., Webb, Fullagar and Taylor JJ.

The respondent to this appeal is the proprietor of a business at Wangaratta in the course of which it sells timber to the public. The business is carried on in a large iron shed with a frontage to a public street. At the front end of the building there are two sets of double doors which provide access for those members of the public who desire to do business with the respondent. Inside the shed itself there were, at the relevant time, stacks of timber and various woodworking machines including a power-driven circular saw.

On 15th February 1954 the appellant came to the respondent's premises for the purpose of purchasing supplies of timber. He had been there previously for the same purpose and had conducted his business with one, Howden, who was said to be the respondent's foreman. On the previous occasions he had entered the shed and made arrangements there for his various purchases. No particular provision was made for the accommodation of customers; there was no office and no part of the building was set apart for their reception or accommodation. Therefore, on the day in question the appellant entered the building through one of the doorways referred to and, having observed Howden working at the circular saw some little distance away, he moved towards him. This is the last the appellant remembers of the events of this visit for he was immediately struck on the face by a flying piece of wood and suffered severe injuries. The fact that he was so struck was established by interrogatories and the other evidence obtained in this fashion indicates that the piece of wood came from the circular saw. The appellant thinks that he was about twelve or fourteen yards from the saw when he was struck but the respondent's answer to an appropriate interrogatory suggests that he was somewhat closer and places the distance at approximately fifteen feet. There is no evidence concerning the size of the piece of wood which struck the appellant nor is there any evidence concerning the size or other characteristics of the saw itself. In particular there is no evidence whether the ejection of a piece of wood of sufficient magnitude and with sufficient violence to cause the appellant's injuries was a usual occurrence in the use of such a saw or, indeed, whether it was an occurrence which might reasonably have been foreseen. Nevertheless, one may feel much sympathy with the argument that if such an occurrence was usual or could reasonably have been foreseen it constituted a danger against which the respondent's customers might well have expected some protection, or, alternatively that if it was such an occurrence as "in the ordinary course of things does not happen if those who have the management use proper care" (Scott v. London & St. Katherine Docks Co. [1] ), the evidence in the case constituted sufficient prima facie evidence of negligence on the part of the respondent's foreman.