REYNOLDS v PLASPAK PTY LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MASON P, PRIESTLEY JA AND GROVE AJA 18 April 1997, 15 October 1997 NEGLIGENCE — FACTORIES SHOPS AND INDUSTRIES ACT 1962 — WORKERS COMPENSATION ACT 1987- — On appeal the appellants submitted: (1) the trial judge erred in finding that the respondent was not an occupier of certain space within the respondent's premises which was rented by the appellant's employer and in which the appellant worked and suffered injury by falling; and, (2) the respondent was in breach of its duty under s40(1) of the Factories Shops and Industries Act 1962. The respondent had raised s151Z of the Workers Compensation Act 1987 as a defence in addition to its other defences. Held: (1) The respondent was an "occupier" of the space in the factory rented by the appellant's employer within the meaning of that word in s4 of the Factories Shops and Industries Act 1962; (2) (Priestley JA dissenting) there was no evidence before the trial judge upon which he could have found, as a matter of fact, that there had been a breach of s40(1) by the respondent: accordingly the appeal failed and it was unnecessary to consider any issues raised by the s151Z defence. Austral Bronze Co Pty Ltd v Ajaka (1970) 44 ALJR 155 Australian Iron & Steel Pty Ltd v Luna (1969) 123 CLR 305 Australian Oil Refining Pty Ltd v Bourne (1980) 28 ALR 521 Hopwood v Rolls Royce Ltd (1947) 176 LT 514 Rolland v United Glass Bottle Manufacturing Co Ltd [1959] SLT (Notes) 10 Trimp v SA Butler Pty Ltd [1964-5] NSWR 1031 Vabu v Commissioner of taxation (1996) ATC 4898; (1996) 33 ATR 537 Mason P I agree with Grove AJA. Priestley JA Appellant's case at trial. The appellant in this appeal, Mrs D Reynolds, injured on 25 May 1990 in premises owned and used as a factory and warehouse by the respondent, Plaspak Pty Ltd (Plaspak), brought proceedings for damages against Plaspak. Her appeal is against the dismissal of those proceedings by Gallen ADCJ in the District Court. At the time of her injury Mrs Reynolds was employed by Lufkin Holdings Pty Ltd (Lufkin). The appellant's son, Mr S. Reynolds was Lufkin's principal shareholder, a director, and day to day manager of the company's activities. The appellant, employed as a supervisor, also performed manual work which involved labelling plastic products with bar codes and trimming plastic tubing in plastic sprays. The trial judge found that the appellant injured her arm when she tripped over a box of sprays which she herself had put on the floor of her workplace. The workplace was an area within the part of Plaspak's premises used as a warehouse. The space occupied by Lufkin changed from time to time, as Plaspak directed. Different estimates of its area at the time of Mrs Reynold's injury were given, none being greater than 2,000 square feet. A rectangle as long as a cricket pitch and half as wide encloses slightly more than 2,000 square feet. In that space Lufkin conducted its own business. 2 UNREPORTED JUDGMENTS Lufkin's business consisted almost entirely of work sub-contracted to it by Plaspak, being finishing work to products manufactured by Plaspak in the factory part of its premises. This included work of the kind already mentioned, the bar coding of tubes and the summing of plastic tubing. The trial judge accepted that Mrs Reynolds was seriously injured in her fall and that she was continuing at the date of trial to suffer disabilities as a result of her injures. The appellant's case against Plaspak had two bases: common law negligence, and breach of statutory duties imposed on Plaspak by the Factories, Shops and Industries Act (the FSI Act). Plaspak denied liability on either basis, alleged contributory negligence as to the first basis, and, further, alleged that, if liable to damages, those damages should be reduced by an amount calculated by reference to the contribution which would have been recoverable but for the operation of the Workers Compensation Act 1987. Trial judge's finding. The trial judge made a number of findings, some of which he numbered. I have already narrated some of these. Others were (using his numbering, and condensing his words to some extent): 5. the area in which Lufkin carried on its business was defined approximately by a frame suspended over a portion of the premises used by Plaspak for warehouse purposes; 6. the area in which Lufkin conducted its business "was occupied exclusively by Lufkin under an agreement made between Lufkin and [Plaspak] prior to 25 May 1990"; 7. Lufkin controlled the appellant and its other employees working within the Lufkin area; 8. pursuant to the agreement mentioned in 6, money was paid or appropriated as remuneration to Plaspak by Lufkin "for the right to occupy and use the area in which... Lufkin carried on its business"; 9. Plaspak had no right on the day of the accident to occupy the Lufkin area nor did it do so; Plaspak had permission from time to time to enter an area adjacent to the Lufkin area to carry out work in repairing tools; 10. all work done by Lufkin's employees was done entirely within "the area controlled by Lufkin... and was work done at the request of [Plaspak]from time to time but at all times the work was done in the manner and method directed by Lufkin..."; 11. Plaspak's employees delivered products manufactured in the factory part of the premises in boxes to points adjacent to the Lufkin area on pallets owned and moved by Plaspak's employees; 12. the pallets were unloaded so that Lufkin's employees had Plaspak's products available to them for the process work required by Plaspak from time to time; 13. for Lufkin's employees to do the work required by Plaspak the boxes from the pallets were carried to places in the Lufkin area where Lufkin's employees carried out the necessary process work. It was also the practice to return the boxes containing the processed products to Plaspak's pallets; The following further unnumbered findings were made by the trial judge, to which I have added numbers: URJ REYNOLDS v PLASPAK PTY LTD (Priestley JA) 3 14. Lufkin's employees used the pallets when loaded to move them to a position where Plaspak's fork lift vehicles could pick them up and take them back to the factory part of Plaspak's premises; 15. Lufkin's employees were provided with pallet fork and handjacks to help them, if necessary, to move the pallets; 16. "... the plaintiff's fall occurred... when she was walking from the place where she had been doing the barcoding She was walking... towards the pallet upon which she intended to place the carton she was carrying". 17. Although the greater part of Lufkin's work was for Plaspak, Lufkin had the right to and did work for other persons in its space in the premises. The trial judge said that he found the appellant to be a truthful witness with one or two exceptions. Although he did not specify the exceptions it seems relatively clear that the only material respect in which he did not accept the appellant's evidence was in regard to one aspect of the circumstances of her fall. In her oral evidence she said that the box over which she tripped had earlier been put on the floor by Mr Platt, an employee of Plaspak. Also in evidence was a document, Exhibit 1, being a statement the appellant had made on 28 June 1990. In this statement she gave an account of her fall which did not mention the box having been put on the floor by Mr Platt The trial judge concluded that Exhibit 1 gave a more accurate version of the appellant's fall than she gave in her evidence almost five years later. The judge's preference for what the appellant had said in Exhibit 1 was his basis for finding that the appellant herself and not Mr Platt had put the box in the position it was in when she fell over it. Other matters of fact which the trial judge appears to have accepted were that people from Plaspak would come into the Lufkin area from time to time in addition to the forklift driver; when pallets were delivered by Plaspak employees on forklift the appellant would at times direct the drivers where to place the pallets and when to remove them. In Exhibit 1 the appellant had said that in her position she organised the pallets "so that when a pallet which has been filled with boxes containing the assembled bottles I use the pallet fork to move out the full pallet and replace it with an empty one...". In Exhibit 1 the appellant had also said that the box over which she tripped "was on the poor of the pathway I'd been using all day to go back and forth to the pallet on which I was placing the boxes of bar coded spray bottled". At the end of the statement she had said that the box "remained in the pathway I had been using all day". Failure of common law claim: no appeal. The finding that it was the appellant and not the Plaspak employee who had put the box where the appellant tripped over it meant that the appellant's common law claim must fail, and the trial judge held accordingly. In the appeal no challenge was made to the trial judge's conclusions about the common law claim. Any challenge to it could only succeed if the appellant were able to displace the trial judge's finding of fact concerning the placement of the box and there is no discernible basis upon which that finding could be varied on appeal. The appeal was confined to the claim based on the alleged breach of statutory duty. Breach of statutory duty claim. There were four steps in the count in the Statement of Claim based on the FSI Act: (i) that Plaspak's premises were a factory within the meaning of the Act (para7); (ii) that Plaspak being the occupier of the premises in which the 4 UNREPORTED JUDGMENTS appellant worked, owed duties to her under the Act (para8); (iii) that Plaspak was in breach of those duties (###para9); and para9(iv) that as a result the appellant was injured and suffered loss. The particulars given of step (iii), (para9), were that in breach of s40(1) the appellant was not provided with safe means of access to a place where she had to work in that the pallet or carton was left in an area where she had to walk, and that in breach of s40(3), Plaspak, being the occupier of a factory did not keep the passageways therein clear of the materials stock and other obstructions. Step (i) required the appellant to prove that Plaspak's premises were a factory. For purposes of the present case "Factor" was given an extended meaning by the Act. S4(1) said, relevancy for present purposes, that "factor" meant "any building or place... in which... four or more persons are engaged directly or indirectly in a manufacturing process". S5(2) provided that for the purposes of the definition of "factory" in subs(1), so far as presently relevant, "all those parts of the close, curtilage or precincts of a factory over which the occupier has the right of access or control shall be deemed to be part of the factory: Provided that where a place within such close, curtilage or precincts is solely used otherwise than for or in connection with the processes carried on in the factory, that place shall not be deemed to form part of the factory but shall, if otherwise it would be a factory, be deemed to be a separate factory." To establish step (ii) the appellant needed to show that Plaspak was the occupier of the part of the premises in which she fell. S9(1) of the FSI Act was relevant to this. It defined employee as meaning any person in the employment of an occupier and added that any person (with exceptions not here relevant) "who works in a factory... whether for wages or not, at any kind of work whatever, shall be deemed to be an employee and to be employed". Trial judge dismisses statutory duty claim: appeal: the "occupier" point. However, the trial judge held that the claims based on the alleged breaches of the statutory duties in s40 must also fail because he was not satisfied that Plaspak was the occupier of the factory in which the appellant worked. His opinion that Plaspak was not an occupier followed from his numbered findings 6 to 9 summarised above. The first point made by the appellant was directed to the trial judge's numbered findings 6 to 9. It was submitted that it was not open to the trial judge, on the material before him, to conclude that Lufkin had an exclusive right in law to occupy its space or that, it, in fact, occupied the space exclusively. One issue at the hearing was whether rent had been paid for the space. Mr Reynolds said that it had not been up to the time of his mother's accident, although at a later stage and in respect of different premises rent was paid by Lufkin to Plaspak Mr Molloy, a director of Plaspak at relevant times said rent had been paid prior to the date of the accident. The trial judge accepted Mr Molloy's recollection, supported indirectly by some accounting records of Plaspak. The judge's finding on this was challenged in the appeal, but it seems to me that the evidence entitled the judge to make the finding that he did. However, it does not follow from the fact that money described as rent was paid by Lufkin to Plaspak in respect of the space occupied by Lufkin that Lufkin had a legal right to exclusive possession of that space or that it in fact occupied the space exclusively. Payment of what the parties call rent is a fact helpful in determining how the relationship between the parties in respect of the rented space should be classified, but cannot be conclusive. In the present case there was URJ REYNOLDS v PLASPAK PTY LTD (Priestley JA) 5 no evidence of explicit agreement between the parties upon the terms of the use of space by Lufkin in Plaspak's premises. The way the relationship created by the use of the space in return for the payment of money should be classified, for legal purposes, can only be by implication from the facts of what the parties actually did. In this respect, there was a body of evidence additional to what has already been set out. Some of this evidence was not in dispute. There were no doors or walls separating the Lufkin area from the surrounding warehouse part of the building. The frame referred to in finding 5 of the trial judge was accepted by Mr Reynolds as roughly defining "the area in which you were to work". He described the frame as "suspended like a mezzanine-type frame" on which there was a motor supplying air conditioning to nearby offices. It was a big square metal box. It gave Lufkin's employees enough room to sit under land work but it hung down to a height preventing pallets getting in under it. Mr Molloy estimated the area at the time of the accident as probably 2,000 square feet. (Mr Reynolds had said 1,000 square feet.) Mr Molloy also said that at different times Lufkin had paid various rents for different areas. One relevant passage in Mr Molloy's evidence was as follows: "Q. Are you able to say whether as at May 1990 Lufkin on those premises to which you have referred carried out work for persons other than Plaspak? A. Yes. Q. And was that for just one other person other than Plaspak like Cromer Acrylics or were there a number? A. Lufkins always had - originally back in the early Eighties we were the only client because the work load then stipulated that they couldn't do work for other people but I would have thought they had been doing work for other people since the late Eighties and customers come and go, I remember Cromer Acrylics, Kenkay Pharmaceuticals, they did some work for Reckitt and Colman but I am not sure whether that was before or after May 1990, I couldn't be sure. Q. Did Plaspak have any objection to that taking place? A. No. Q. Did Plaspak take any steps to prevent such work being done on the premises which it provided to Lufkin? A. No. Q. Did you on behalf of Plaspak regard that area that they occupied as being their area or yours as well? A. No, it was always - keeping in mind the space varied from time to time but basically from year to year it was always designated as being their area and they paid rent on it accordingly. Q. And when the space varied did the rent vary? A. As far as I know yes. HIS HONOUR: Q. And to your knowledge how was it calculated? A. Just based on commercial square footage area- Q. By area, so much a square metre A. Yes, whatever the going rate was on the area, $5.50 a square foot or -" Mr Molloy further said that as long as Plaspak had a relationship with Lufkin, Lufkin had always worked from inside Plaspak's premises: "it's always been convenient for us to make room for them in the warehouse". Further evidence of the actual facts of the relationship was given by Mr Molloy in cross-examination: 6 UNREPORTED JUDGMENTS "Q. And sometimes it was necessary for Lufkin to have more employees than at other times, depending on the amount of work that Plaspak had for Lufkin? A. Depending on the amount of work Lufkin had to do for Plaspak and their other customers, yes. Q. And in those circumstances Lufkin would take up extra space? A. By request, yes. Q. Well if they were doing work for you that meant they had to use extra space there wasn't going to be much of a request involved was there, they 'd just do it? A. No, they would normally come up to the factory manager or whoever was in charge at the time and say, we require extra space here, can we have it? That was pretty normal practice. Q. And it would be given to them? A. Yes. Q. And if they needed less space because there wasn't the workload there, they "'d be working in a smaller area? A. No. It worked one way but it didn't work the other. It was always agreed that they had a minimum amount of space, and that's what they paid rent on. They never operated on less space, but occasionally we provided more space for them. Q. The point of my question, Mr Molloy, was after the need for more space had gone they'd revert back to the usual area? A. Yes. Q. There were certainly you'd agree no delineating marks to show where Lufkin would work? A. No, that's not the case, they always had a very defined area It was either marked or it was agreed to be, you know, that line against the wall, or it was marked by yellow lines, or there was always some way of determining their minimum area Q. I'd suggest to you Mr Molloy it was also the case that from time to time, as was necessary, Plaspak employees would have access to the Lufkin area, for example to bring down work to be done by Lufkin? A. Yes, most certainly. Q. Also to take away work once it had been done by Lufkin? A. Yes. Particularly if it was on a pallet it would have to be moved by fork lift, yes they 'd need somebody who had a fork lift licence. Q. To your knowledge at that stage Lufkin didn't have a fork lift, they had some of those little hand pallet trolleys - - A. Yes. Q. But nothing to move around for any distance - - A. No. Any fork lift work was conducted by our people. Q. As well as that Plaspak staff would to your understanding from time to time check how the work was going? A. Yes. Q. And give directions as to what was to be done or modifications as to what was to be done? A. Well a request was always made by placing an order for what had to be done on weekly or daily basis. Q. And indeed it might happen many times during a day that Plaspak would go down to the Lufkin area, tell them what was to be done and how and when? OBJECTION. QUESTION WITHDRAWN. URJ REYNOLDS v PLASPAK PTY LTD (Priestley JA) 7 Q. Plaspak staff would, wouldn't they, give directions about what was to be done firstly? OBJECTION. FORM." The upshot of the objection was that Mr Molloy eventually said, in answer to questions by the judge: "We've had a long-standing relationship on the basis that they do the job that we request of them. We would walk down and issue an order and say, we need 10,000 triggers tagged for Colgate Palmolive for instance. Somebody else would then come down and say, look we also need 2,000 for somebody else, can you tell us when you can do it. Q. So what you 're describing is placing of orders? A. Yes. And a request for a delivery time. I mean, how long will it take to get done. There 's also been times where Lufkin has come back and said, I don't have enough people to do it, and we have said, well the workload as such, is it possible that you can get people to do it. I mean that's just normal day to day operational methods. LIDDEN: Q. The directions would also include, wouldn't they, specifications of what was to be produced, for example, the trigger spray with a tube a certain length? A. Yes, that request has always been made by customers. If they want 200 millimetres, then that's what the request is to be trimmed to 200 millimetres. I mean, you have to give them specifications the same as we do to every other supplier. Q. And the requirements for those specifications would come from Plaspak? A. Yes. Q. To Lufkin - - A. Yes. Q. And if there was a problem with what had actually been supplied, again it would be taken up from Plaspak to Lufkin, if there was something wrong with the order? A. Before it 's supplied or after it 's supplied? Q. After it has been supplied or in the course of its supply if there was some defect in the way that Lufkin was going about making up the order, that would be brought to their attention of course, wouldn't it? A. Well if it was a very large order and for some reason one of their employees had been doing it incorrectly, then our quality control manager or warehouse manager would have gone down and said, look this is not what the customer wants, you were supposed to cut them to 200 and they've cut them to 190. I mean that's just normal quality control issues." Then, a little later: "Q. You don 't suggest, do you, that this area where Lufkin was working was restricted so far as access was concerned to only Lufkin employees? A. No. Q. Your employees had they a legitimate reason to go on to the area would go on? A. Not without discussing it with the Lufkin people. Q. What do you mean, do you suggest that they would ask can we come down and provide you with an order please? A. No, but if they wanted to get in to service the air conditioner for instance, they would certainly say to Lufkin, look the guys will be here to service the air conditioner tomorrow, that type of thing 8 UNREPORTED JUDGMENTS Q. And there would be never a problem in - - A. No, as | said we've had a terrific relationship, there has never been a problem like that. Q. Who would generally give these verbal orders as to what was to be done and how many and when, and that sort of thing? A. It would depend on what the job was. If they were labelling bottles it would have been the operations manager. It may well have been the purchasing manager. If it was trigger sprays it would have been the trigger spray coordination officer." The finding of the trial judge concerning exclusive occupation meant that the appellant could not establish that Plaspak had a duty under s40(1) because, even if in one sense Plaspak were an occupier of the whole building, the finding denied that Plaspak had any right of access to or control of the Lufkin space in the building. I do not think the trial judge demonstrated that Lufkin had a legal right to exclude Plaspak from its space in the premises. It seems to me that when both the facts directly relevant to Lufkin's occupation of space in Plaspak's premises are considered, together with the facts of the relationship between the two companies generally, it would be counter factual to conclude that the parties had agreed either expressly or by implication that Lufkin's use and occupation of its space gave it a legal right to exclude Plaspak from that space. The facts, and the legal categorisation of groups of those facts, are independently important in the present case. The written submissions for Plaspak commented on the appellant having chosen to bring proceedings against Plaspak rather than her employer Lufkin. It was said that this choice was only explicable on the footing that if the appellant could succeed in establishing liability against a defendant other than her employer she would avoid limiting provisions of the Workers Compensation Act 1987 which would apply if she established liability against her employer Lufkin. In making this submission Plaspak described its relation with Lufkin as one of "business arrangements" and in the course of the hearing at first instance counsel for Plaspak spoke carefully in terms of Plaspak always dealing with Lufkin as an independent contractor. The appellant for the purposes of her proceedings, and Lufkin and Plaspak for the purposes of their relationship, were seeking to cast what they did into a legal form which would be to their practical advantage. Important for practical advantage, the distinction between a contract for service and a contract for services has recently been underlined, and, perhaps reinforced, by the refusal of the High Court to grant special leave to appeal from this court's decision in Vabu Pty Ltd v Commissioner of Taxation (1996) ATC 4898; 1996 33 ATR 537. In the present case, under the legal form adopted by Lufkin and Plaspak lie some matters of fact which carry weight in deciding the occupancy question which must be considered along with the weight of their undisputed non employer/employee contractual relationship. Those facts are that Plaspak was carrying out the manufacture of plastic products on premises which it owned. Plaspak employed Lufkin as an independent contractor, in Plaspak's premises, to carry out some of the operations necessary to bring some of its products to their final manufactured state. A person looking at what was happening in the premises, without knowledge of the legal relationships between the people working there would have seen a complete manufacturing and warehousing operation going on in the one building, that is, the making and storing of plastic goods. URJ REYNOLDS v PLASPAK PTY LTD (Priestley JA) 9 The evidence given by Mr Molloy, in which he did his best to speak in the appropriate legal terms, seems to me to yield only one sensible conclusion: those persons controlling the operations of Plaspak in the building were in general charge of what went on in the building. In order for Plaspak to get its products into a finished state Plaspak would require Lufkin to take certain steps and to see that those steps were taken in a way ensuring the finished product was properly finished in accordance with the requirements of Plaspak and its customers. I do not see how it could seriously be said that it would ever have occurred to any person working for Lufkin either that Lufkin could prevent Plaspak going on to its space, for example, in order to deal with the airconditioning machinery in the frame immediately above Lufkin's space, or, if Mr Molloy or Mr Platt wanted to go into Lufkin's space either to give instructions or to see how Lufkin's employees were doing their work, that they could have been excluded. The Lufkin part of the Plaspak operation was a small part of one integrated operation being carried on in Plaspak's premises which it suited Lufkin and Plaspak to treat as an independent contractual arrangement rather than one of employment. I see nothing in the evidence however supporting the view that the parties, as well as creating the particular contractual relationship between them which they did, had ever agreed in words or otherwise that Lufkin's space for which it paid on a commercial basis carried with it the right to exclude Plaspak altogether from it. Appellant should succeed on occupier point: In my view, the legal situation concerning the Lufkin space was that Lufkin was entitled to occupy it, did not have exclusive occupation, could not prevent Plaspak entering the space and giving directions concerning its management, and that Plaspak was fan occupier of Lufkin's space within the meaning of that word in s4 of the FSI Act. In my respectful opinion therefore this court should accept the appellant's submission that the trial judge was wrong in saying Plaspak was not relevantly in occupation of the Lufkin space. This conclusion means that the appellant should have succeeded in step (ii) of her claim. It would also follow from success in this step that, in light of the definitions of "factory" and "employee" earlier set out, she should also have succeeded in step (i). Applying the definitions to the facts, the appellant was working in a factory, was relevantly a deemed employee and Plaspak had right of access or control of the factory including the part in which she worked. Plaspak was therefore subject to the duties imposed by s40 in regard to the part of the factory in which the appellant worked. Breach of statutory duty. Because of the view he took about occupation, the trial judge had not needed to consider whether Plaspak had been in breach of its s40 duties. It was contended by Plaspak in the appeal that on the facts as found by the trial judge it could not be concluded that the appellant had shown breach of duty by Plaspak. The argument in the appeal on this aspect was confined to the alleged breach of s40(1) and I will therefore limit my consideration of the breach of duty issues to this particular alleged breach (although, without reaching or expressing any final about it, it would seem to me that much the same considerations would apply to the alleged s40(3) breach also). S40(1) is as follows: "There shall so far as is reasonably practicable be provided and maintained in every factory safe means of access to every place at which any person has at any time to work" 10 UNREPORTED JUDGMENTS Put shortly, the submission for Plaspak was that the appellant suffered her injury not while obtaining access to a place where she had to work but while at the place of work itself and engaged on a process incidental to an integral part of the work itself. The kind of distinction on which the submission was based has been made frequently in cases involving breach of statutory duty when the statute or regulation has been in terms similar to s40(1). In Trimp v SA Butler Pty Ltd [1964-5] NSWR 1031, a Full Court decision, Maguire J commented that such a regulation: "could very well apply, according to the circumstances, of course, to an employee, for instance, who, in the course of his employment on a substantial building, found it necessary to go from one part of that building to another. But I do not think... it... necessary to discuss the full ambit... of this... Regulation in the present case. Clearly, it relates to means of access and, as I construe what the learned District Court Judge had to say... he found as a fact that the plaintiff at the time of his injury was not using a means of access to a place where he had to work, but that he had in fact arrived at and was on the site where he would carry out the duties of his employment.... I think there was evidence before the learned Judge upon which he might properly have found... that the plaintiff was not endeavouring to gain access to his place of work but was in fact engaged on his work" (at 1034-1035). Collins J said: "In my view it was open as a matter of fact to the learned trial Judge to find... that the plaintiff was at the place at which he had to work and, consequently, his injury was not received by him while he was at any means of access. I agree with [Maguire J] that it does not mean that in a building where there is a place at which a person entitled to the protection of the Regulation has to work there could not also be places which might properly be described as 'means of access ', and I would apprehend that in certain cases stairways, passages, gangways, perhaps lifts, all could be considered to be 'means of access'." (at 1037) Two cases from the United Kingdom. Some of the language used by Maguire and Collins JJ in Trimp reflects discussion of the same point in the UK in two cases in particular, which appear to be still relevant in cases of this kind in New South Wales. The first of these cases is Hopwood v Rolls Royce Ltd (1947) 176 LT 514. In it the English Court of Appeal was considering s26(1) of the Factories Act 1937. This was in identical terms to s40(1) except that it did not include the words "in every factory". The case concerned a workman in a large shop working on cylinder heads for aeroplane engines. On completing work on a cylinder the workman had to take it to the bench of an inspector some way down the shop and deposit it for inspection. The weight of the cylinder required two men to carry it. The workman and a fellow worker took a cylinder to the inspection bench and were directed by the inspector to put it down in a different place from usual. They moved backwards to do this and the workman fell over two other cylinders on the floor. The matter came before the Court of Appeal by way of appeal by the employer from a decision of Cassels J. Lord Greene said that he had always thought the section should be interpreted as meaning: ". that a workman is entitled to have a safe means of access to his work whatever other workmen may use that means of access, or even f it is not a recognised gangway, or something of that kind, at all." (at 516) URJ REYNOLDS v PLASPAK PTY LTD (Priestley JA) 11 He applied that interpretation to the following questions, what was the place at which this workman had to work at the relevant time, what was his means of access to it, and was that as safe as was reasonably practicable. Lord Greene discussed the first two questions at quite considerable length. The discussion seems to me to be relevant to the present case and important also for an understanding of what was decided by the two High Court decisions particularly relied on by Plaspak in this appeal. It is also difficult to summarise without detracting from its effect: "A place at which a workman has to work may, of course, for certain purposes be a large area, and it may not be necessary in such a case to sub-divide that area in order to ascertain what the precise work place at a given moment is. I will explain what I mean. If a workman has to work in a factory to which there is access by a path, it matters not in what part of the factory he is going to work. If he has to walk up that path to get into the factory, that path must be a safe means of access for him. Accordingly if a workman employed anywhere in the factory found that the path was unsafe, all that he would have to say would be: "My place of work was the factory, and the means of access to the factory was unsafe'. No difficulty arises in such a case. Then you may have the more complicated case where a man 's work involves moving about in a factory. In the present case the man's place of work at one stage of his operations is his bench where he is doing the work on the cylinder block that he had to do. At another stage his place of work is the passage down which he has to carry the cylinder block. A third stage is the place where he has to do something with the cylinder block at the point to which he is moving. If for instance, he has to do something to the block at one bench, and then carry the block to the other end of the factory and do something to it at another bench, that other bench, I should have thought, was a place of work within the section; and it would not be possible to treat bench No I plus the route to bench No 2 plus bench No 2 as a place of work for this purpose in the sense that the workman can only require a safe means of access to that composite area It seems to me that, in the case which I put, the pathway from bench No | to bench No 2 has two aspects. First of all, it is itself a place of work, because his work being to carry the block from bench No I to bench No 2, he performs that work by walking along the route between the two and the whole route is a place of work. But for the purpose of arriving at bench No 2 the pathway is a means of access to that place of work, and under the section, in my opinion, the workman is entitled to have that pathway as a safe means of access to bench No 2. In the present case the contest arises really in this way. Mr Paull, for the appellants, agrees that it may be necessary (and that in this case it is necessary) to dissect the actual work which a man has to do and to regard the ultimate place to which he has to take the cylinder block as a place of work access to which he is entitled to have made safe for him. Mr Paull would agree, I think, to the proposition I have just stated that if the pathway down which the workman had to go carrying the cylinder block to the inspector's table was not safe, he would be entitled to relief under the section. What Mr Paull says is this: The man 's job was to carry the cylinder block to the inspector's table and there deposit it. He says that the place of work to which the man was moving was the neighbourhood of the table, which he conveniently described as the stacking area He said that the man had to move to an area at which he had to stack and that everything that he did when he reached that area was not using a means of access to his place of work but actually working in the place of work at which, according to Mr Paull, 12 UNREPORTED JUDGMENTS he had arrived. Accordingly Mr Paull contends that, having arrived in the neighbourhood of the table, all that happened was that in going to one side of the table rather than another side he was not using a means of access to his place of work but was actually in his place of work doing his work and that therefore the obligation to provide a safe means of access ended when he reached the neighbourhood of the table at which the stacking operations might be said to begin. On the other side it is said that conception of an area of work, however useful it may be in other circumstances, will not really work on the facts of this case. The task of the workman, it is said, was to deposit the cylinder block conveniently beside the inspector's table; that the place of work within the meaning of the section, was the actual place of deposit; that so long as he was moving to that place he was using a means of access; and that the mans of access in the circumstances was not a safe means of access because there was an obstruction there against which he might reasonably run the risk of hitting himself and suffering injury. The application of these words in individual cases, it seems to me, may be extremely difficult. The view that there may be within, so to speak the ring fence of a man's work several places at which he is required at some time to work is, I think entirely supported by the decision of this court in the case of Callaghan v Kidd and Son (Engineers), Ltd (170 LT Rep 368; (1944) KB 560). In that case there were two grindstones about fifteen yards apart, and the workman had occasion to grind a tool at those grindstones, for which purpose he required to use both grindstones. In one sense his place of work might be considered to be the grinding area comprising the two grindstones; on one argument it might be said that the obligation of the section extends only to the point when he had reached the grinding area and that, as soon as he had reached that point, he was not using a means of access to his place of work but was in fact, working in his place of work which he had ex hypothesi already reached. But in that case the man had used grindstone No | and on his way to grindstone No 2, which he also required to use, he fell over obstructions left in his path, and this court held that there was a breach of this subsection in that his place of work in the circumstances was the second grindstone. His means of access to it passed from the first grindstone to the second grindstone. That means of access was not safe by reason of the obstruction, and he was entitled to recover. If I may say so with great respect, that decision appears to me to be unassailable on the facts of that case, and the principle which 1 discover in it is that you can have for a man's work two places of work and if his work requires him to move from place No 1 to place No 2, the section entitles him to a safe means of access between those two points. All sorts of suggestions were quite properly made to show that sort of construction can be reduced to an absurdity. The case was put of a man at his work having to move afoot or two in one direction in order to pick something up and move it a little way. It was said, can that be regarded as a means of access to his work? I suggested (and Mr Paull accepted) that the solution might be this: There must be a safe means of access to the particular branch of the man's work on which at the moment he is about to engage himself That would exclude movements taken while doing one operation or one set of operations, and would confine the section to cases where it can truly be said that if a man is moving from one branch of his work to another branch of his work his route in doing so is a means of access. I may say at once that the word 'branch' is one that I do not find quite satisfactory, but I do not pause to search for a better word because I think that my meaning URJ REYNOLDS v PLASPAK PTY LTD (Priestley JA) 13 is reasonably clear. In Callaghan's case there were two branches of the man's work, one to be carried out on grindstone No I and the other to be carried out on grindstone No 2, and he was entitled to a safe means of access from the first branch to the second.""(at 516-518) Lord Greene then said that in the case before the court the workman's work consisted of three branches: (1) what he did on his own bench; (2) going from his bench to the inspector's table; and (3) putting the cylinder block at the inspector's table. In his view the workman was enticed to a safe means of access from his own bench to the inspector's table. He also said that when the inspector had told the workman to put the block down at a different place the means of access would have been lengthened by the small distance between where the block was originally to be placed at the inspector's table. The distance although small was a variation of the workman's route to the third branch of his work and, said Lord Greene, he was entitled to a safe means of access. Asquith LJ agreed, saying: "After many fluctuations of mind I have arrived at the conclusion that... the place of work was in this case not an area but the spot to which the inspector had directed the plaintiff and that the plaintiff; therefore, was still employing 'means of access' when the accident occurred." (at 520) Roxburgh J dissented, exemplifying the differences of opinion that can arise in cases of this kind, saying that the case was very near the line but that he thought it fell just on the other side, the place having been at one of the places at which the workman had to work when the accident occurred. He could not regard the workman's journey "from one side of the table to another as a journey to a different place at which he had to work" (at 520). What Lord Greene said in this case was the basis of decision in the other case from the UK, a Scottish case, Rolland v United Glass Bottle Manufacturing Co Ltd [1959] SLT (Notes) 10. This was somewhat similar to Hopwood. In Rolland the plaintiff worker alleged in his pleadings that in working for a firm of bottle manufacturers he had to wheel barrow loads of crushed glass from a chute to a mixer and that he had fallen while wheeling a barrow from the chute to the mixer his fall being caused because the means of access from the one to the other was unsafe. The employer contended the floor between chute and mixer was not a means of access but the worker's place of work. Lord Guest held the pleading was supportable. He applied the tests stated by Lord Greene in Hopwood saying: "Hopwood makes it clear that there is nothing inconsistent in a pathway being both a place of work and a means of access to a place of work In the present case the pursuer's work consisted in loading the barrow at the chute and also in unloading the barrow at the mixer. No doubt when wheeling the barrow from the chute to the mixer he was at a place of work but he was also using a means of access to the mixer which was also a place where he had to work" (at 11) Hopwood and Rolland in the High Court. The two cases were considered by the High Court in Australian Iron & Steel Pty Ltd v Luna (1969) 123 CLR 305. At first instance Collins J had refused to leave a count based on breach of the statutory duty in s40(1) of the FSI Act to a jury. He had been overruled in the New South Wales Court of Appeal. 14 UNREPORTED JUDGMENTS The facts had been that the plaintiff was required to fill a barrow with clay and wheel it to venous points on a railway line where buggies were stationed. Couplings on the buggies were to be covered with clay. While wheeling the barrow from one buggy to another he met with an accident land suffered injury. Collins J was of the view that at that time he was at the place where he had to work and not on his way to the place where he had to work, so that he was not making use of any means of access to his place of work. In the appeal Wallace P said the facts permitted a finding that the appellant's places of work were at each coupling and that when moving between the couplings which he thought were twelve to fifteen feet apart, the appellant would be using a means of access. The matter should have been left to the jury. Jacobs and Holmes JJA in joint reasons agreed. They referred to Hopwood and the case mentioned in Hopwood, Callaghan and then cited cases which had subsequently applied Lord Greene's test from Hopwood. They said these cases showed that it "may be a question of fact for the jury whether the plaintiff was using a means of access within the meaning of the section... when he suffered his injury" (at p3 of their original reasons). They went on to describe what they understood the area of fact would be which could be in dispute at the new trial which the court was ordering. This question would be what work was the plaintiff primarily employed to perform. "Tf on the evidence it is not disputed or if the jury determines that the plaintiff was primarily employed to clay up the couplings and that the wheeling of the barrow to the sites of the various couplings was ancillary to the primary work then the place of injury would in a relevant sense be the means of access to the plaintiff's work and the section would be applicable. Was the plaintiff's primary work the wheeling of a barrow at the place where his injury occurred? Or was that work only ancillary and for the purpose of gaining access for himself his tools, utensils and materials to the place where the plaintiff was required to perform his real work of claying up a coupling? If the conclusion is reached that the primary work was the claying up of the couplings then the only question for the jury would be whether the means of access to that work was safe." The Court of Appeal's decision was overturned by a majority of three to two in the High Court: Australian Iron and Steel Pty Ltd v Luna (1969) 123 CLR 305. A question relevant for the present appeal is whether the High Court said Hopwood and Rolland were wrong, and should not be followed in New South Wales. On my reading of the reasons of the majority, Barwick CJ, Windeyer and Owen JJ, (the dissenters were Kitto and Menzies JJ) I do not think that was the effect of the decision. In his reasons Barwick CJ referred to the basis upon which Collins J had taken the count from the jury, citing the passage I have earlier set out. He commented (at 307) that what Collins J had done was, in truth, to reach a conclusion of fact which would have been a question for the jury if any contrary view were possible. Turning to the construction of s40(1) Barwick CJ said (at 308) that he could not conceive a case where the same area or place was at the one time in relation to an item of work both the place at which that work was to be done and a means of access to that place. I do not think this carefully expressed sentence is in conflict with anything said by Lord Greene in Hopwood. Barwick CJ next said that his view was that the statute depended for its operation upon a distinction being maintained between the place at which work is to be done and the means of access to that place (at 308). URJ REYNOLDS v PLASPAK PTY LTD (Priestley JA) 15 Then, after discussing two views of the section that had been presented to the court on the appeal, (at 308-310) in a way which appeared to merge the ideas behind the concepts "a place of work" and a place where a job of work is done he concluded (at 310) that the way the section had to be applied was (i)""determine what-was the job of work currently to be performed", (ii) delineate the place where "the employee will reasonably be expected to range in the performance of that job of work, (iii) ask "whether or not means of access have been provided to that place," and, if so, (iv) ask "whether that means of access is safe so far as is reasonably practicable". He said these were all questions of fact, and that the question in the appeal was whether there had been any evidence on which a view adverse to the employer could reasonably have been entertained, this being a question of law. His opinion on the question was that the only possible legal view of the facts was that in successively claying the couplings of the buggies, the employee was doing only one job and therefore not using any means of access in moving between them. This conclusion could raise some tricky questions if it were relevant to pursue why it was that a man doing things in sequence to a number of different objects was, as a matter of law to the exclusion of any question of fact, to be characterised as doing "one job of work'"', in the absence of any statutory or other binding definition of that phrase. Fortunately, however, I do not think it is necessary to look into those questions in this case. The important point is that Barwick CJ made it clear that in his opinion the proper construction of s40(1) meant that the four questions earlier set out had to be asked and that they were all questions of fact. His view on the actual facts of Luna does not in any way cut down that position. In the remainder of his reasons he discussed the United Kingdom authorities, in particular Hopwood and Rolland. As I understand his discussion of these cases he was explaining how they were not inconsistent with his own view of the way in which the section should be applied. In that sense he was approving them. The basis of Windeyer J's opinion was also that he could not "accept the proposition that each time the plaintiff moved, pushing his barrow from one coupling to the next, he was using a means of access to a new place where he had to work.... he was throughout engaged on a single task,... to be carried out at one place of work." (at 322) Windeyer J does not appear to have been critical of Hopwood (see 323). What I have said about Windeyer J applies also to what was said by Owen J. Also, Owen J additionally referred to Rolland, without apparent disapproval, explaining the decision there on the footing that Lord Guest must have thought it would be open to a tribunal of fact to find the plaintiff was moving from one separate and distinct branch of his work, namely filling the barrow at the chute, to another separate and distinct branch of his work, namely emptying his load into the mixer, and was not merely carrying out one set of operations (at 326). Owen J illustrated his adoption of this approach to the section by remarking that although in his opinion once the employee had begun to put clay on the couplings he could only be regarded as performing one set of operations, it might have been the position (he expressed no opinion on it) "that if the plaintiff had been injured while wheeling the barrow between the clay bin and the line of 'buggies' the finding would have been open that he was using a means of access from one branch of his work to another branch 16 UNREPORTED JUDGMENTS notwithstanding the fact that the pathway between those two points was a place where he had to work and was in fact working by wheeling the barrow along it." (at 325) The result of Luna is therefore, as it seems to me, that Hopwood and Rolland were, subject to the way in which they were explained in the High Court, accepted as standing authorities and that the way in which Barwick CJ said s40(1) should be applied, which was not in my opinion inconsistent with what had been said in Hopwood and Rolland, became authoritative. In a case heard soon after Luna, Austral Bronze Co Pty Ltd v Ajaka (1970) 44 ALJR 155, the court relied on its decision in Luna in holding that there was no evidence fit to go to a jury of a breach of s40(1). As in Luna, the result in this case fumed entirely upon the court's view of the facts, and did not affect the propositions emerging from Hopwood, Rolland and Luna itself. The law applicable to the present case. So far as I have been able to discover there have been no decisions since Luna affecting the construction of s40(1) relevantly for present purposes. On that footing, it seems to me that the position concerning the construction of the section established by Hopwood, Rolland and Luna in its application to the present case would have required the trial judge to go through Barwick CJ's four step process I have listed above. In my view there was material before the court which would have enabled the first three questions to be decided in favour of the appellant. I am saying no more than that, in jury teens, there was evidence fit for a jury to consider the questions as questions of fact. In my opinion it is not open to this court to determine those questions simply as questions of law. The fourth question strikes me as a difficult one. There is nothing in the materials to suggest (assuming the first three questions were answered in favour of the appellant) that until the appellant herself placed the box on the means of access she was using between her two places of work, that that means of access was not safe so far as reasonably practicable. The trial judge's findings meant that it was she herself who made it unsafe. If this were to be regarded as contributory negligence, it would be of no assistance to the respondent Plaspak. Contributory negligence is not a defence to a breach of statutory duty. But the fact that the appellant herself put the box over which she tripped upon the means of access raises the question whether the respondent was in breach at all of the statutory duty. To answer this question it is necessary to return to the actual words of the statutory provision which require that safe means of access shall, so far as is reasonably practicable "be provided and maintained". Since the duty is said to be an absolute one, since contributory negligence is not relevant to a breach of the duty, and since the duty is to maintain as well as provide safe means of access, it seems to me that the very heavy duty is cast upon the relevant occupier/employer of ensuring so far as reasonably practicable that the persons involved in the use as well as the provision of the means of access keep it safe. What was said on this topic by the High Court in Australian Oil Refining Pty Ltd v Bourne (1980) 28 ALR 521 and the authorities cited in that report (esp at 534-5) seem to me to support this approach. On this view, I think it would have been open to the trial Judge to decide the fourth matter m favour of the appellant also, although he would not have been bound to do so: like the other questions, it would in my opinion have been the equivalent of a jury question. This all leads me to the conclusion that there should be a new trial of the appellant's case. URJ REYNOLDS v PLASPAK PTY LTD (Grove AJA) 17 $151Z of the Workers Compensation Act. Submissions were also made in this court concerning a further matter of defence pleaded by Plaspak in the District Court. This defence was to the effect that if Plaspak were to be found liable any damages found payable to the appellant should be reduced by the amount by which contribution from Lufkin which would have been recoverable but for the operation of the Workers Compensation Act 1987 exceeded the amount of contribution in fact recoverable. This defence was based on s151Z of the Workers Compensation Act 1987. It raises a number of issues, which, in the light of the way the case was decided by the trial judge and of the views I have expressed concerning the need for questions of fact relevant to Plaspak's possible liability to be retried, it is either impossible, or at the very least inappropriate, for this court to attempt to resolve in this appeal. The various issues raised by the s151Z defence will have to be resolved by the judge at the new trial if that judge finds in favour of Mrs Reynolds against Plaspak. In my opinion the court should make the following orders: 1. Appeal upheld. 2. Judgment below set aside. 3. New trial ordered. 4. The respondent to pay the appellant's costs of the appeal. 5. The costs of the first trial to abide the event of the new trial. Grove AJA I have had the advantage of reading the judgment of Priestley JA in draft form and I gratefully adopt his descriptions of the background facts and his analysis of the issues arising for determination. For the reasons which he has given, I agree that it is not open for the appellant to pursue further her claim for damages for alleged breach of common law duty by the respondent. I also agree that finding by the trial judge that the respondent was not relevantly in occupation of the space within the premises at which the appellant's fall occurred was wrong. The outstanding issues in the appeal relate to allegations of breach of statutory duty. I deal first with the alleged breach of s40(1) of the Factories Shops & Industries Act 1962. The critical issue is whether the appellant was using a means of access at the time of injury. As Priestley JA pointed out, on the highest estimate in the evidence the whole relevant area of operations by Lufkin was no more than 2000 sq ft and within that space the entirety of the task upon which the appellant was engaged was carried out. The most favourable view in support of her case is available from her own testimony. Her evidence in chief was led with digressions into circumstances pertaining to other issues but the following questions and answers can be extracted: "Q. And can you tell me please where Lufkin Holdings was in relation to this building in Yalgar Road? A. We were in the store, the storage part, like the warehouse part, just in a small corner. Q. I want to ask you about the procedure which was followed when a pallet of these sprays was brought to be worked upon, how would they arrive? What would be on the pallet? A. Well the forklift driver would bring a pallet with thirty cartons on a pallet. Q. And what was inside the cartons? A. Trigger sprays. 18 UNREPORTED JUDGMENTS Q. And would there be just the spray mechanism or would the bottle be there as well? A. No just the spray itself. Q. Where would the pallet be put? A. Well it would be brought as close to us as we could work on it. Q. And there were benches, weren't there, in the area that you worked in? A. Yes, tables and such as. Q. And you would then do whatever was necessary to assemble the spray mechanism, is that right? A. That's right. Q. Re-pack them in the box? A. Yes. Q. And then what would you do with them? A. Well we'd just re-pack them onto a pallet and Plaspak would take them away. Q. On the day of the accident in May 1990, you'd been doing a particular task for some time, hadn't you? A. Yes. Q. What had you been doing? A. Labelling IMB money boxes. Q. These are plastic money boxes? A. Yes plastic money boxes. Q. How would they arrive? A. Well Plaspak's forklift driver would bring a pallet at a time around. Q. And would you follow a similar procedure, unpacking the cardboard box, doing your work, packing a box again and placing it back on the pallet? A. That's right. Q. Where were the pallets located on the day that you were injured compared to where you were working? How far away? A. About three or four feet away. Not even - about six feet away. Q. No I just want you to describe where, compared to your work station, if I can call it that, where you were doing the money boxes, the pallet and this single cardboard box were? Which side of you, left or right? A. Right. Q. And where compared to where you were? How far back and where? A. About three feet I suppose. Q. So you continued on doing your packing and labelling of the money boxes, correct? A. Yes. Q. About how long were you doing it after Mr Pratt left and you returned to that task? A. About fifteen minutes. Q. During that period of time did Mr Pratt return? A. No. Q. Can you tell me then what you did? A. When I finished the box I picked it up. Q. I've just go to do this bit by bit and it's got to be on the record you see. When you picked it up you' ve described the movement with your hands, can you show me or tell me how you were holding it? URJ REYNOLDS v PLASPAK PTY LTD (Grove AJA) 19 A. Well, the top of the box has four flaps, I think two backwards, just picked it up with the flaps like they were handles, to carry it across and put it back. Q. So at what height did you have the box? A. Well I had it waist high but you couldn't see over the top. Q. So you turned around from your work station I take it? A. Yes. Q. And where were you going? A. Over to the pallet that I'd been putting them on all day. Q. And so you started off your journey -- A. Yes. Q. -- and part way did something happen? A. Yeah suppose tripped over the box." And in cross examination: "Q. Now you used to lift and carry boxes around that area did you not? A. Yes. Q. You would go to the pallet, pick them up, take them to the bench and vice versa? A. Yes. Q. You would move them around on the floor and slide them? A. Yes. Q. As you began to move towards the pallet that involved you in moving away from the bench, I i suppose? A. Yes. Q. And how far did you have to move from the bench before you go to where the carton was and tripped? A. About three or four feet." A statement made by the appellant on 28 June 1990 was tendered at trial by the respondent. Much of the content related to general matters and the issue, resolved against the appellant, as to who put the box on the floor upon which she tripped. The recorded description of the incident was in these terms: "Thad been doing bar coding work most of this day and it was my practise after filling a box with bottles I had bar coded to carry the box a distance of about 10 ft to place it onto a pallet with the other boxes of bar coded bottles I had completed. Anyhow in the afternoon at about 2.30 pm after I filled up a carton with bottles I had bar coded I then lifted the box and carried it in front of me with both hands and held onto the side flaps of the box, to take it over to the pallet. Thad only carried the box about half way when I suddenly tripped on a carton of sprays which was on the floor in the pathway I had been using all day to go back and forth to the pallet on which I was placing the boxes of bar coded spray bottles." Difficult questions of fact arise in distinguishing by description a place of work and means of access to a place of work. As Lord Greene recognized in Hopwood v Rolls Royce Ltd 1947 176 LT 514 there is potential for absurdity but place of work and means of access convey different notions in the statutory context. It is acknowledged that a place could be a means of access at one time and a place of work at a different time but they cannot be so at the same time: Dorman Long & Co Ltd v Hillier 1951 1 All ER 357. This concept did not arise in the leading Australian case of Australian Iron and Steel Ltd v Luna 1969 123 CLR 305 but Barwick CJ remarked on this topic: 20 UNREPORTED JUDGMENTS "However, for my own part, whilst of course what at one time in relation to some item of work may be a means of access, may at other times in relation to some other item of work be a place at which that work is to be done, I am unable as at present advised to conceive a case where the same area or place is at the one time in relation to the item of work both the place at which such work is to be done and a means of access to that place. To my mind the statute depends for its operation upon the maintenance of the distinction between the place at which work is to be done and the means of access to that place" @ p308. Further in his judgment his Honour referred to circumstances which I respectfully regard as valuable in leading towards a correct perspective of the current ones. He said: "Allowing for the fact that the statute is designed, speaking generally, to promote safety of working conditions, I do not think that by this section the legislature intended to impose a statutory obligation upon employers in respect of all surfaces over which an employee might move in the performance of the work he is employed to do. There must be a great range of operations in industry in which the performance of the assigned job of work requires the employee doing it to move from one place to another, places perhaps proximate to each other, or perhaps distant apart. For example, a moulder pouring moulds on a floor by means of a ladle must move from the cupola or furnace along the moulding floor to each mould in turn: and an employee breaking out the moulds, when ready for that operation, must also move about the moulding floor from mould to mould. On a large floor this may involve considerable movement. Can the floor as a whole be said to be a means of access or is it as a whole a place at which the person is to work? In my opinion, it cannot. As the contrast for which the section calls is between the place at which a job of work is to be performed and the means of access to that place, it follows, in my opinion, that for the purpose of applying this section, it is necessary to determine what was the job of work currently to be performed. The area over which the employee will reasonably be expected to range in the performance of that job of work will, in my opinion, be the place at which he is to work within the meaning and for the purpose of the application of s40. Having thus delineated the place at which he is to work, the question whether or not means of access have been provided to that place, and if so, whether that means of access is safe so far as is reasonably practicable can be resolved. These are of course all questions of fact to be decided under proper direction as to the requirements of the section. But the question whether there is any evidence on which a view adverse to a defendant can reasonably be entertained is a question of law: indeed that is the question of law in this appeal": @ p309-310. Likewise I consider the same question is germane to this appeal. I reach a conclusion different from Priestley JA in that I would hold that there was no evidence adverse to the respondent whereby a view favourable to the appellant can be entertained. I recognize that there are references in the evidence to the "journey" and to the "pathway" but most of these emerge from counsel's questions which no doubt have the strictures of the statute in mind and I do not accept that such words can be imposed nor are they capable of genuine application to the circumstances at the factory premises. The above extracts from the appellant's evidence show no more than that the task upon which she was engaged involved some minor movement strikingly comparable to Barwick CJ's example of the moulder. URJ REYNOLDS v PLASPAK PTY LTD (Grove AJA) 21 Hypothetically it must always be possible to dissect the components of a task into separate components of activity but with respect to the different view, I consider that the evidence showed no more than that the job of work was to receive the boxed items, extract and individually mark them, return them to the box and replace the box ready for pickup. The movement of the appellant must reasonably have been expected to involve ranging within the tiny area of Lufkin's operations and the even tinier area where she worked and I do not consider the evidence could admit of a dissection which would permit the step which she estimated at three to four feet as a means of access "to a place" at which she had to work. Whilst I am conscious of the danger of seeking to draw a perception of principle from comparison of fact, the unanimous decision of the High Court in Austral Bronze Co Pty Ltd v Ajaka 1970 44 ALJR 155 that the action of lifting a repaired bearing from a work bench to a transport trolley could not sustain an allegation that means of access was being used offers to my mind an indistinguishable situation from the appellant's action in putting the box of items into the forklift transport pickup position. No argument was advanced concerning the pleaded breach of s40(3) of the abovementioned Act. It is noted that the provision is operative upon notice in writing by an inspector and relates to gangways or passages of minimum width of 1.2 metres and of marked boundaries. As is implicit from the absence of submission, the appellant could not succeed on the basis of allegation of breach of this provision. In my opinion the appeal should be dismissed with costs. 1. Appeal dismissed. 2. The appellant to pay the respondent's costs of the appeal. Counsel for the appellant: M Aldridge Solicitors for the appellant: Brydens Law Office Counsel for the respondent: H Shore Solicitors for the respondent: Goldrick Farrell & Mullan