Vozza v Tooth & Co Ltd [1964] HCA 29

High Court of Australia McTiernan, Kitto, Taylor, Windeyer and Owen JJ. Vozza v Tooth & Co Ltd [1964] HCA 29

ORDER Appeal dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

May 11 McTiernan J.

I agree with the judgment of Windeyer J. and with his reasons.

Kitto J.

I agree in the judgment to be delivered by Windeyer J. and have nothing to add.

Taylor J.

I have had the opportunity of considering the reasons prepared by Windeyer J. in this case and I agree with his observations and conclusions. Accordingly I would dismiss the appeal.

Windeyer J.

This is an appeal from a judgment of the Supreme Court of New South Wales which set aside a verdict found for the plaintiff in an action at nisi prius. By a majority (Sugerman and Manning JJ.) that Court ordered that judgment be entered for the defendant. Brereton J. dissented. He considered that there should be a new trial.

The appellant, whom it will be convenient to call the plaintiff, was employed by the respondent company, the defendant, a brewer. The plaintiff's task was to take bottles of beer out of baskets in which they had been when in a pasteurizer and place them on a conveyor belt for movement to another part of the brewery. As a result of the temperature to which bottles and their contents were subjected in the pasteurizer some bottles burst. It is said that about one in two hundred did do. That was a significant number, as some five hundred and fifty dozen bottles went through the pasteurizer in an hour. In the course of his duties the plaintiff had to pick up pieces of glass, the debris of broken bottles. Sometimes a bottle burst in his hand or immediately after he had set it down. There was then a danger of his being hit by splinters of glass. He was given gloves to protect his hands, and goggles to protect his eyes. Similar equipment was provided for other persons working elsewhere in the bottling department. The gloves were of good quality leather. They gave a considerable measure of protection against cuts by broken glass, although they were not impenetrable. Men were occasionally cut on the hand through the gloves; and, according to the plaintiff's evidence, he and others sometimes received cuts on other parts of the body. Although the plaintiff's task was not free from risks, it appears that the chance of anything other than a superficial injury occurring to the hand of a man wearing gloves was not great. However that may be, the plaintiff suffered a somewhat deep cut on the back of his right hand when a bottle burst. He was away from work for a period. He returned to work; but later he developed some psychological disorder caused by, or associated with, the physical injury to his hand. He was said to have thereby become totally incapacitated for manual work.