High Court of Australia
34 C.L.R.] OF AUSTRALIA.
(HIGH COURT OF AUSTRALIA.]
COFIELD : 5 e : , ' . APPELLANT ; PLAINTIFF,
AND
THE WATERLOO CASE COMPANY LIMITED . Responpent. Deri
NDANT,
ON APPEAL FROM THE SUPREME COURT OF NEW SOUTH WALES.
Personal Injury—Breach of statutory duty—Dangerous machinery—Dity to fence— Contributory negligence —Misdirection—New trial—Factories and Shops Act 1912 (V.S.IF.) (No. 39 of 1912), secs. 33,
In an action brought by the widow of a deceased employee agunst his employer the plaintiff alleged by the first count of the declaration negligence as to providing proper guards and reasonable precautions for the safe working of a certain machine in the defendant's factory whereby the deceased was injured and killed, and by the second count, based on the Fact Shops Act 1912 (N.S.W.), that the defendant in contravention of that Act negh
ries and
4 and omitted securely or at all to fence the dangerous parts of the machine whereby the deceased was injured and died. The jury returned a general verdict for the defendant on both counts.
Held, that in the particular circumstances there should be a new trial as to the second count, there having been a misdirection on the question of contributory negligence upon which the jury might have acted.
Quere, whether contributory negligence is a defence to an action to recover damages for injuries caused by a breach of the duty created by sec. 33. of the Factories and Shops Act 1912 (N.S.W.), which requires the occupier of a factory
securely fence all dangerous parts of the machinery therein."
to
It is the duty of the occupier of a factory within the meaning of the and Shops Act 1912 (N.S.W.), to make the machinery safe for negligent as well as careful people.
H. C. or A. 1924. —
Sypwey,
Mar. 26, 27,
MELBouRNE, June 10.
Gavan Duffy, Rich and Starke JJ.
364 HIGH COURT [19245
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