Dairy Farmers Co-operative Ltd v Azar [1990] HCA 63

High Court of Australia Brennan, Deane, Dawson, Toohey and Gaudron JJ. Dairy Farmers Co-operative Ltd v Azar [1990] HCA 63

ORDER Appeal dismissed with costs.

Cur. adv. vult.

The Court delivered the following written judgment:—

Sept. 5 Brennan, Deane, Dawson, Toohey and Gaudron JJ.

This is an appeal from a judgment of the Court of Appeal of New South Wales, delivered on 10 February 1989. By its judgment the Court of Appeal allowed an appeal by the present respondent from a judgment of Slattery C.J. at C.L., in which his Honour dismissed the respondent's claim for damages against the present appellant. The Court of Appeal remitted the proceedings to the Common Law Division of the Supreme Court for the assessment of the respondent's damages.

The ambit of the proceedings before this Court is made clear by the grounds of appeal which read:

2.1 That the Court of Appeal was in error in holding that Section 27 of the New South Wales Factories Shops and Industries Act, 1962 imposed an obligation upon the Appellant to securely fence the bottles being moved by the crating machine in the course of its operation.

2.2 That the Court of Appeal was in error in finding that upon the proper construction of Section 27 of the said Act the bottles were dangerous parts of the crating machine.

2.3 That the Court of Appeal was in error in not finding that there is a distinction between the bottles being moved in the crating machine and the parts of the machine and that the obligation to fence imposed by Section 27 of the said Act is only to fence dangerous parts of the machine.

2.4 That the Court of Appeal was in error in its statement and application of the principles expounded in the decision of this Honourable Court in Mummery v Irvings Pty. Limited (96 C.L.R. 99).

The facts fall within a narrow compass; we take this recital largely from the judgments of Slattery C.J. at C.L. at first instance and of Clarke J.A. in the Court of Appeal. At about 6.15 p.m. on 3 April 1981 the respondent was working on a machine known as a "Graham Enoch pneumatically operated 60 head milk bottle crater". The dimensions of the machine were 2 m. in length, 1.2 m. in depth and 2 m. in height. Gripper heads of the machine picked up full bottles of milk by the tops and lowered the bottles into plastic crates which had been moved by conveyor belt, three at a time, to a position where the bottles could be loaded into them. The action of the gripper heads was an automatic and continuous process, the machine being activated and stopped by a button on a box. Just before the respondent's accident, some bottles had been smashed on a bottle filling machine which was only a short distance from the bottle crater. The former was stopped to allow clearing up, then restarted. The bottle filling machine and the bottle crater were both operating. The respondent then tried to remove broken glass from a crate on the bottle crater but he was not quick enough and his hand was crushed between the bottom of a descending bottle and the broken glass in the bottom of the crate. The usual practice, not surprisingly, was to switch off the machine before removing broken glass in such a situation. The respondent's claim for damages for negligence and for breach of statutory duty failed at first instance. The claim in negligence was not pursued but the claim for breach of statutory duty succeeded on appeal; it is this claim which is now challenged.