Waugh v Kippen [1986] HCA 12

High Court of Australia Gibbs C.J. Mason, Wilson, Deane and Dawson JJ. Waugh v Kippen [1986] HCA 12

ORDER Appeal dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

March 20 Gibbs C.J.,Mason, Wilson and Dawson JJ.

This is an appeal by special leave from a majority decision of the Full Court of the Supreme Court of Queensland (Andrews A.C.J. and McPherson J., Derrington J. dissenting) dismissing an appeal from the decision at first instance of Shepherdson J. The action was instituted by the appellant. He claimed damages for negligence and breach of statutory duty in respect of personal injury suffered by him on 7 April 1977 in the course of his employment by the respondents. He was then forty-one years of age and had been employed as a boilermaker and welder by the respondents for about eleven months.

The evidence discloses that on 7 April 1977 the appellant was engaged in welding cleats on rolled steel joists described as universal beams. Each beam was between 8.5 and 10 metres long and weighed about 310 kilograms. There were thirty beams in all and he had been occupied on the task for about three weeks. The task required each beam to be lifted by mechanical means on to two steel trestles. Each trestle was about 1.25 metres wide with the top on which the beam rested consisting of a piece of inverted angle iron, thereby presenting as small a surface as possible in contact with the beam. In order to weld the cleats on each beam it was necessary for the beam to be turned four times as it lay on the trestles. This was done by using a steel bar as a lever. The effect of turning a beam was to move it towards one side of the trestle so that it became necessary from time to time to slide the beam back towards the centre of the trestle. This was done by the appellant standing beside one end of a beam and using two hands to pull it towards him. No lifting was involved. The learned trial judge described these manoeuvres as simple tasks. He accepted evidence that levers of the type referred to in the case were in common use and that there was no need for more than one man using such a lever to turn a 10-metre long universal beam weighing 310 kilograms. The trial judge also found that the respondents' foreman, Mr. Holder, told the appellant that he could have assistance to turn the beams over; however, the parties now agree that there is no evidence to support that finding. At the same time the evidence of Mr. Sehmish, who was employed as a labourer, was to the effect that he assisted the appellant from time to time to turn the beams over and there is no reason to suppose that the appellant was not aware that he could call for assistance if he required it. With respect to the force required to slide the end of a beam across a trestle with a two-handed pull, the report of a survey made in 1980 by an ergonomics group at Surrey University in England established an acceptable limit for such a manoeuvre equivalent to a mass of 45 kilograms for a male person aged between forty-one and fifty years, with 50 kilograms as the limit for a male below forty-one years of age. The trial judge accepted the evidence of an engineer who estimated that the force employed by the appellant to slide one end of a beam across the trestle with a two-handed pull would be equivalent to a mass of 31 kilograms if the beam was supported by trestles which were placed at the same distance from each end of the beam and would range up to 36 kilograms if the trestles were so placed as to spread the weight of the beam unevenly. These estimates relate to a normal male person having no relevant disability.