Smith v Broken Hill Pty Co Ltd [1957] HCA 34

High Court of Australia Dixon C.J. McTiernan, Fullagar, Kitto and Taylor JJ. Smith v Broken Hill Pty Co Ltd [1957] HCA 34

ORDER Appeal dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

June 3 Dixon C.J.

I have had the privilege of reading the judgment prepared by Taylor J. in which the facts are very fully set out. I take the same view of the case as his Honour has done but I regard it as one in which the facts disclose no ground for questioning the correctness of the course taken by the judge at the trial and confirmed in the Full Court of the Supreme Court.

I do not desire to qualify in any way the statement made by Kitto J. and myself in Hamilton v. Nuroof (W.A.) Pty. Ltd. [1] , of the duty of care of an employer for his employee's safety from risks involved in the work. But I cannot see the slightest evidence of a breach of that duty on the part of any of the defendant's servants or agents.

1. (1956) 96 C.L.R. 18, at pp. 25, 26.

I think the appeal should be dismissed.

McTiernan J.

I agree that the appeal should be dismissed.

There is no evidence that the appellant was exposed to the risk of falling from the top of the coke ovens by doing his part in throwing the box over the side. That he would fall over the side with the box was too unlikely an occurrence to be foreseen by an ordinary careful employer. There is no evidence that it was foreseen by the respondent's leading hand who gave the order to throw the box over the side. I am of opinion that it is not a reasonable proposition that he ought to have foreseen that the occurrence was possible; or that it was a breach of any duty on his part not to tell the workmen how to perform the simple task of throwing the box over the side without incurring the danger of falling over with it. I am of opinion that on the issue of negligence there was no evidence fit to be left to the jury.