Plaintiffs relying on s 40(2) of the Factories, Shops and Industries Act 1962 (NSW) must prove that a secure handhold was necessary in addition to a secure foothold; the onus does not shift to the defendant to prove that a foothold alone was sufficient.
Later decisions that cite Australian Iron & Steel Pty Ltd v Seco
AUSTRALIAN IRON & STEEL PTY. LTD. v. SECO [1968] HCA 36; (1968) 117 CLR 342
Factories, Shops and Industries (N.S.W.)
High Court of Australia
Barwick C.J.(1), McTiernan(2), Kitto(1), Taylor(1) and Menzies(1) JJ.
CATCHWORDS
Factories, Shops and Industries (N.S.W.) - Safe working place - Duty to provide secure footholds, handholds or other safety means - Breach - Onus of proof - "unless" - Factories, Shops and Industries Act, 1962-1966 (N.S.W.), s. 40 (2).*
HEARING
Sydney, 1968, March 25, 26; June 21. 21:6:1968DECISION
June 21.
2. The statutory provision upon which the plaintiff relied was s. 40 (2) of
the Factories, Shops and Industries Act, 1962 (N.S.W.). It is in these terms:
"Where in any factory a person is to work at a place from
which he will be liable to fall a distance more than ten feet,
then, unless the place is one which affords secure foot-hold and,
where necessary, secure hand-hold, means shall be provided,
so far as is reasonably practicable, by fencing or otherwise for
securing his safety." (at p345)
3. The plaintiff fell more than ten feet from a steel platform thirteen feet
wide and 101 feet long upon which he was standing and
using a thin iron rod
about ten feet long and hooked at one end to dislodge a steel billet which, he
said, had become stuck in the
mouth of the staff - as it was called - of a
steel bottle mould which stood opposite and about six feet from the edge of
the platform
where the plaintiff was standing and with its mouth at about the
same level as that platform. The plaintiff was standing about one
foot from
the edge of the platform with a good firm foothold and, in some way not
explained, he says that he fell forward while attempting
to pull the billet
out of the mouth of the staff with the rod. What the plaintiff was attempting
to do was, it seems, unprecedented,
because the evidence was that billets at
the top of the staff are normally removed by hand by a worker using a movable
catwalk running
at right angles to the platform and about seven feet from the
ground, at a time when the casting box and the casting are still in
position
around the staff. On this occasion there was evidence that an attempt by the
plaintiff to remove the billet by hand in the
ordinary way, and at the earlier
stage in the operation, had not been successful, and that it was after the
casting box and the casting
had been taken away, leaving the staff standing by
itself, that the plaintiff was seeking to remove the billet by a method which
he had devised for himself. (at p345)
4. Upon the evidence, it could have been found that the platform was a place at which the plaintiff was to work, and was, also, a place from which he was liable to fall a distance of ten feet or more. There was no question but that the platform did afford a secure foothold. In our opinion, however, there was no evidence that a secure handhold, as well as a secure foothold, was necessary to secure the safety of the plaintiff. The mere fact of his falling from the platform is, of course, not of itself any evidence that a secure handhold was necessary to secure his safety. The principal legal question here is the significance of this lack of evidence. (at p345)
5. As we read the sub-section in question, it is directed to ensuring that a place where a worker is to work and from which he is at risk of falling ten feet or more has, first, a secure foothold, and if that is not of itself enough to secure the safety of a worker, a secure handhold, and failing these, fencing or other means of securing the safety of a worker. An offence is committed when (1) there being no secure foothold, or, (2) there being a secure foothold which is not of itself enough, (3) there is no secure handhold, and (4) there is also an omission to provide, where practicable, other means by fencing or otherwise to secure the safety of the worker. (at p346)
6. Upon this reading of the sub-section it would not be sufficient to establish an offence thereunder to prove that, notwithstanding a secure foothold, neither a secure handhold nor other means of safety were provided, leaving the defendant to prove as a defence that the secure foothold was itself a sufficient means of safety, and that a handhold was not necessary as well. It seems to us that it is difficult to split the sub-section into two separate parts - first, the definition of "offence", and second, the provision of a qualification. The offence created by the sub-section could not, we think, be fairly described as the omission to provide secure handholds or other safety means in a place where a worker is to work and from which he is at risk of falling ten feet or more, subject to the qualification that such handhold or other means of safety need not be provided at such a place where there is a secure foothold which, of itself, affords the worker safety. Such a reading would not, we think, accord with what is plainly the object of the section, viz. the provision of a secure foothold, and where that is not enough, secure handholds, and failing these, other safety means. (at p346)
7. Reliance was placed by counsel for the respondent upon the decision of the House of Lords in Nimmo v. Alexander Cowan & Sons Ltd. (1968) AC 107 to support a construction of the sub-section which would throw upon the defendant the onus of proving that secure handholds were unnecessary where there was a secure foothold. The decision of the House of Lords to the effect that, upon a section such as this, the onus of proving whether other means of safety were practicable lies upon a defendant does not, we think, touch the question with which the Court is concerned here. We have already pointed out the difficulty of attempting to split the subsection into a statement of the offence with an accompanying qualification, and we say no more than in our opinion the word "unless" does not always introduce what is properly to be described as a qualification upon the definition of an offence. Thus a section creating an offence of failing to fence a footwalk in a factory, unless it be less than five feet above the ground, would not require a conviction, if, the only evidence were, that a footway in a factory was unfenced. The essence of the offence created by such a section would be the omission to fence a footway five feet or more above the ground, and that the prosecution would have to prove. Accordingly we do not think that the words in s. 40 (2), "unless the place is one which affords secure foot-hold and, where necessary, secure hand-hold", throw upon a person said to be in breach of the sub-section the onus of proving that there was a secure foothold and that a secure handhold was unnecessary. (at p347)
8. We agree entirely with the conclusion reached by the learned trial judge when he said: "In my opinion, to come within this section so that there is a liability imposed by it to provide means of fencing or otherwise securing the safety of an employee, the workplace must be more than ten feet from the ground; that is, it must be exposing him to a risk of falling more than ten feet, and the place must be one which does not afford secure footholds and, if they are necessary, secure handholds. If there is evidence either that secure footholds are not afforded at the workplace or that secure handholds are necessary and are not provided, then subject to the question of practicability there is an obligation on the owner, the occupier of the factory, to fence it. In my opinion the section has no application here since the only evidence is that the working place did afford secure footholds, and there is no evidence that handholds were necessary. It is not, therefore, essential or necessary for the defendant to make out a case of practicability, and as the proven facts do not bring the plaintiff within the application of the section there must be a verdict directed on this count." (at p347)
9. In the absence of proof of breach of statutory duty there was, as the learned trial judge found, no evidence of negligence. The lack of evidence that a secure handhold was necessary and of negligence required the verdict and judgment for the defendant which the learned trial judge directed. (at p347)
10. Accordingly, in our opinion the appeal should be allowed. (at p347)
McTIERNAN J. I am of opinion that upon the proper construction of s. 40 (2) of the Factories, Shops and Industries Act, 1962, the onus of proving that there was a secure foothold, and that a handhold was either secure or unnecessary, lay upon the defendant. As I dissent on the question it is not necessary for me to say more than that I think Wallace P. and Jacobs J.A. correctly construed s. 40 (2) and I agree with what each of their Honours said on this point. Their conclusion has, in my view, the support of the majority of the House of Lords in Nimmo v. Alexander Cowan & Sons Ltd. (1968) AC 107 and of the decisions cited by Mr. Sullivan on the same problem of distinguishing between a qualification and an exception. There was, in my opinion, therefore, a case to go to the jury on the count based on allegations of a breach of the defendant's duty under s. 40 (2) and also a case to go to the jury on count one, which was for negligence at common law. I think that the reasons of the majority of the Court of Appeal of the Supreme Court of New South Wales, Wallace P. and Jacobs J.A., are right. I would dismiss the appeal. (at p348)
ORDER
Appeal allowed with costs. Order of the Supreme Court of New South Wales (Court of Appeal Division) set aside and in lieu thereof order that the appeal to that Court be dismissed with costs.