General Motors-Holden's Pty Ltd v Moularas [1964] HCA 39

High Court of Australia Barwick C.J. Taylor, Menzies, Windeyer and Owen JJ. General Motors-Holden's Pty Ltd v Moularas [1964] HCA 39

ORDER Appeal dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

July 29 Barwick C.J.

This is an appeal from the Full Court of the Supreme Court of Victoria dismissing a motion for a new trial in an action in which a jury returned a verdict for the plaintiff in the sum of £19,797 14s. 0d. Judgment was entered upon this verdict for the sum of £19,751 5s. 4d., being the amount of the verdict less certain payments of workers' compensation which had been received by the plaintiff.

The cause of action was negligence on the part of the defendant, the plaintiff's employer, in having failed to provide him with adequate implements and with proper protective clothing, whilst working at a furnace of the defendant. The defendant, besides denying the negligence, pleaded the contributing negligence of the plaintiff.

The essential facts of the case were simple in the extreme. The plaintiff's tasks included the clearing of the mouth of an operating furnace containing molten metal for which purpose, by the defendant's concession, he needed for his safety a rake of some fifteen feet in length. Also, by the defendant's concession, he needed not merely gloves but gauntlets to protect his lower arms.

Admittedly, on the day of his injury the plaintiff was working at the furnace—and apparently had worked for the greater part of his shift—with a rake not more than eleven feet in length and was wearing at the time of the occurrence gloves but not gauntlets. The disputed area between the parties consisted, on the one hand, in the assertion by the defendant that at another furnace some sixty feet away from that at which the plaintiff was working there was a rake of adequate length, that the plaintiff knew that such a rake was likely to be there, that during his six months' employment with the defendant the plaintiff had on other occasions gone to that other furnace and procured such a rake for his use, that the plaintiff had not bothered on this occasion to look for another rake, that the defendant had provided the plaintiff with gauntlets and had exhibited notices directing their use by employees in the plaintiff's circumstances, and that by its foreman the defendant had on other occasions directed the plaintiff to use them when he was observed not to be doing so; and, on the other hand, in the plaintiff's denial that there was another rake available to him, in his assertion that he had looked around for another and longer rake unsuccessfully, that he had complained to the foreman on this day of the shortness of the rake without any replacement being forthcoming, and in the plaintiff's denial that gauntlets were at any time available to him, or that any notice about them as asserted by the defendant was brought to his attention or that he had ever been spoken to about not wearing them.