Australian Iron & Steel Pty Ltd v Seco [1968] HCA 36

High Court of Australia Barwick C.J. McTiernan, Kitto, Taylor and Menzies JJ. Australian Iron & Steel Pty Ltd v Seco [1968] HCA 36

ORDER Appeal allowed with costs. Order of the Supreme Court of New South Wales (Court of Appeal Division) set aside and in lieu thereof order that the appeal to that Court be dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

June 21 Barwick C.J.,Kitto, Taylor and Menzies JJ.

An action for damages for injuries caused by breach of a statutory duty or, alternatively, negligence on the part of the plaintiff's employer, resulted in a judgment by direction for the defendant. By a majority (Wallace P. and Jacobs J.A., Asprey J.A. dissenting), the Court of Appeal of the Supreme Court of New South Wales allowed an appeal and directed a new trial. An appeal has been brought to this Court seeking the reinstatement of the verdict and judgment for the defendant.

The statutory provision upon which the plaintiff relied was s. 40 (2) of the Factories, Shops and Industries Act, 1962 N.S.W.. It is in these terms:

Where in any factory a person is to work at a place from which he will be liable to fall a distance more than ten feet, then, unless the place is one which affords secure foot-hold and, where necessary, secure hand-hold, means shall be provided, so far as is reasonably practicable, by fencing or otherwise for securing his safety.

The plaintiff fell more than ten feet from a steel platform thirteen feet wide and 101 feet long upon which he was standing and using a thin iron rod about ten feet long and hooked at one end to dislodge a steel billet which, he said, had become stuck in the mouth of the staff—as it was called—of a steel bottle mould which stood opposite and about six feet from the edge of the platform where the plaintiff was standing and with its mouth at about the same level as that platform. The plaintiff was standing about one foot from the edge of the platform with a good firm foothold and, in some way not explained, he says that he fell forward while attempting to pull the billet out of the mouth of the staff with the rod. What the plaintiff was attempting to do was, it seems, unprecedented, because the evidence was that billets at the top of the staff are normally removed by hand by a worker using a movable catwalk running at right angles to the platform and about seven feet from the ground, at a time when the casting box and the casting are still in position around the staff. On this occasion there was evidence that an attempt by the plaintiff to remove the billet by hand in the ordinary way, and at the earlier stage in the operation, had not been successful, and that it was after the casting box and the casting had been taken away, leaving the staff standing by itself, that the plaintiff was seeking to remove the billet by a method which he had devised for himself.