ACI Metal Stamping & Spinning Pty Ltd v Boczulik [1964] HCA 26

High Court of Australia McTiernan, Kitto, Taylor, Windeyer and Owen JJ. ACI Metal Stamping & Spinning Pty Ltd v Boczulik [1964] HCA 26

ORDER Appeal dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

April 30 McTiernan J.

This is an appeal from the order of the Supreme Court of New South Wales dismissing the defendant's motion to set aside the verdict returned by the jury in favour of the plaintiff. The amount of the verdict was £10,000. The judges were not unanimous. Sugerman J. dissented. The majority were Else-Mitchell and Moffitt JJ.

In this appeal Mr. Byers relied on the reasoning of the dissentient judge.

The plaintiff alleged that an injury she suffered outside the place where she worked was caused by breach of the defendant's duty as employer to take due care for her safety. When the injury occurred she was on her way home from work. In fact she had worked overtime and it was then dark. She sustained the injury by stepping into an excavation in the path over which she was walking. The excavation was not guarded nor sufficiently lighted. The employees received no warning about it. But the appellant took no part in the operations in connexion with which it was made. It was not shown that the appellant was occupier of the land over which the path ran. The place where the plaintiff worked was within an area bounded by public streets but the premises occupied by the appellant in which the plaintiff worked did not abut on any of those streets. The path in question was one of several that crossed the area and by some arrangement not disclosed by the evidence these paths were the access by which the appellant's employees reached their working place and returned to the public street. None of these paths was a public street: none was under the appellant's control, as far as the evidence shows. The first question is whether the appellant's duty as employer to take due care of the respondent as servant extended to her when she was injured. In my opinion this question should be answered in the affirmative. I think that the case resembles, to a material extent, Ashdown v. Samuel Williams & Sons Ltd. [1] . In that case Havers J., having referred to the employer's duty in respect of access where the place of work abuts a highway, said: "A different position may arise if—as in the present case—the employer's place of work is entirely surrounded, for all practical purposes, by private land belonging to somebody else. The employer clearly has to provide some means of access to his employees by which they can reach their place of work. In such a case, where there is a right of way which the employee is entitled to use, it seems to me that if the employer intends his employees to use it, he would be under a general duty to take reasonable care that that way was reasonably safe for his employees to use. As regards the precautions which he could take, of course, regard would have to be had to the fact that he had a limited right only on the land, and that the land belonged to somebody else. I hold, in such circumstances, that there would be a duty upon the employer to take reasonable care to ensure that that way was reasonably safe for his employees" [2] . The decision in the case was varied on appeal: the reasoning which I have quoted was not disapproved. In my opinion such reasoning is right and provides the correct solution of the present case. See Charlesworth on Negligence 4th ed. (1962) par. 849, p. 390.