Bourke v Butterfield and Lewis Limited [1926] HCA 38

354 HIGH COURT (1926.

H.C. or A. The case seems to be still stronger where the supposed certificate of

1926. the Medical Board turns out to be invalid (as here). eats HENNESSY ¥ a c <A Appeal dismissed with costs. BROKEN Hit Pry.

Co. Lrp. Solicitor for the appellant, Walter P. Blackmore, Broken Hill, by Young & Blackmore. Solicitors for the respondent, J. R. Edwards & Son, Broken Hill,

Foster & Co by Minter, Simpson & Co. cata) BL.

(HIGH COURT OF AUSTRALIA.)

BOURKE 4 5 % 3 is 3 is . APPELLANT; PLAINTIFF, AND BUTTERFIELD AND LEWIS LIMITED . . RESPONDENT.

DEFENDANT,

ON APPEAL FROM THE SUPREME COURT OF NEW SOUTH WALES.

H.C. or A. Personal Injury—Employer and Employee—Action for damages—Breach of statutory

1926. duty—Dangerous machinery—Duty to fence— Defence—Contributory negligence— —— Limits of employer's liability—Factories and Shops Act 1912 (N.S.W.) (No. 39 of Sypey, 1912), secs. 33, 53, 56. Aug. 4, 5. oe i 5 ; pa Contributory negligence is not a defence to an action to recover damages — Mepourne, for personal injury caused by a breach of an absolute statutory duty imposed Nov. 1. for the benefit of a class of persons of which the plaintiff is a member.

McKinnon v. Barnes, (1912) 12 8.R. (N.S.W.) 129, overruled.

Limits of defendant's responsibility in such a case considered.

In an action by an employee against his employer to recover damages for personal injury to the employee caused by a breach of the duty imposed upon

38 C.L.R.] OF AUSTRALIA.

355.

the employer by sec, 33 of the Factories and Shops Act 1912 (N.S.W.) to securely H. C. or A.

fence all dangerous parts of the machinery in his factory, the jury found a verdict for the plaintiff and, in answer to questions put to them by the trial Judge, found that the injury was due to the breach of the duty and also that it was "due to the plaintiff's own negligence in the sense that but for that negligence the accident would not have happened."