Sungravure Pty Ltd v Meani [1964] HCA 16

High Court of Australia McTiernan, Kitto, Menzies, Windeyer, and Owen JJ. Sungravure Pty Ltd v Meani [1964] HCA 16

ORDER Appeal allowed with costs. Order of the Full Court of the Supreme Court discharged. In lieu thereof order that appeal to that Court be dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

1964, March 19 McTiernan J.

This is an appeal by the defendant from an order of the Full Court of the Supreme Court of New South Wales made on a motion by the plaintiff for a new trial of the action. The motion was allowed as to the first count and dismissed as to the second count. The counts were respectively for negligence and breach of statutory duty. The jury found for the defendant on both counts. The defendant brought the present appeal by leave of this Court against the order for a new trial of the first count and the appeal is concerned only with that count. The jury found against the defendant on the issue of negligence but also found that the plaintiff was guilty of such negligence as to disentitle him to recover damages. The judges who constituted the Full Court of the Supreme Court were of the opinion that the evidence was insufficient to afford prima facie proof of negligence. This decision is contested in this appeal by the defendant.

The plaintiff claimed damages from the defendant in respect of a broken forearm suffered at work in the defendant's printing works. When the accident happened he had for some time been carrying out an order of the foreman to "hold" a "bumpy reel" of newsprint which was being unwound on a spindle in a machine called a spider. The reel was heavy and it was rotating rapidly: the newsprint was breaking from time to time because the condition of the reel made the mechanical tension straps somewhat ineffective. The reel was set in a horizontal position. There was not much clearance from the floor and one end of it was about ten inches from a vertical stanchion, which was opposite the near end of the reel of newsprint. To "hold" the reel meant to apply manual pressure to it while it revolved in order to steady its motion, a rag being held in the hand against the reel. The foreman gave no directions to the plaintiff how to carry out his order. It was the practice in the printing works to leave the men called brake hands, of whom the plaintiff was one, to their own devices as to how and at what place to apply manual pressure when called upon to hold a revolving reel of newsprint: they were expected to apply the pressure where it would be effective. When the accident happened the plaintiff was pressing his right hand against the lower sector of the reel he was ordered to "hold" and keeping his elbow against the inner side of the stanchion: with his arm in that position he could press effectively on the reel. The rag which he was holding against the side of the reel became caught in it and as the motion of the reel was towards him his hand was carried up with the result that his arm was jammed against the stanchion. The accident happened some time after the plaintiff was ordered to hold the reel. When it happened the foreman was himself applying manual pressure on the top of the reel. He was close to the plaintiff and if he looked down he could have seen what the plaintiff was doing. He did not do so because it was his duty to keep his eyes on the newsprint running off the reel up to the printing press. Apparently after the operation of applying manual pressure began the newsprint ran off the reel satisfactorily. It appeared from the plaintiff's evidence that this was the first time he had been called upon to hold a bumpy reel by manual pressure: that he had held reels by that means while braking as the printing press slowed down and then only for about a minute. According to his evidence he had been operating on the bumpy reel which he was ordered to "hold" for two hours before the accident happened, applying pressure to it on top and then at the side. The foreman said he did not do so continuously. It was attempted in cross-examination of the plaintiff to prove by admission that the engineer strictly forbade applying manual pressure on the side of a reel. The plaintiff said in reply that the engineer forbade it only after the accident. The engineer was not called as a witness. However, the foreman said in evidence that it was normal practice to apply manual pressure to bumpy reels and a permitted procedure to do this at the side of a bumpy reel, including the lower half sector of it, if the brake hand chose, it being a matter for him and no danger having ever been noticed before. It was elicited from the foreman by cross-examination that on the afternoon when the accident happened the only way a proof could be got was to apply "pretty hard manual pressure" to the reel and that to apply pressure at the bottom, the rotations being towards the plaintiff, was the most effective way to retard the reel. A passage in the evidence of the plaintiff reads thus: