Melbourne Electric Supply Company Limited v Ogden

[1918] HCA 7

24 CLR 303

THE MELBOURNE ELECTRIC SUPPLY

COMPANY LIMITED

APPELLANTS; DEFENDANTS, OGDEN

RESPONDENT. PLAINTIFF,

ON APPEAL FROM THE SUPREME COURT OF Regligence-Employer and employee-Negligence of fellow servant-Finding of

jury-System of supervision.

In an action to recover damages for personal injuries sustained by the plaintiff while in the defendants' employment by reason of the alleged negli- gence of the defendants, it was proved that one of a number of poles of the defendants used for supporting electric wires broke off while the plaintiff was working on it, causing him to fall and be injured. One of the defences was that the negligence was that of a fellow employee. The jury found that the defendants did not take reasonable care to provide a proper supervision of

24 CLR 304

the poles in their use and control, and they gave a verdict for the plaintiff. On an appeal on the ground that there was no evidence to support the jury's finding,

Held, that the finding was not merely a finding that the person entrusted with the duty of inspecting the poles did not carry out that duty with sufficient care, which would support a defence of common employment, but was a finding that the defendants did not adopt a reasonably effective method or system of inspection, and that there was ample evidence to support the finding so interpreted.

Decision of the Supreme Court of Victoria: Ogden v. Melbourne Electric Supply Co. Ltd., (1918) V.L.R., 77; 39 A.L.T., 111, affirmed on a different ground.

APPEAL from the Supreme Court of Victoria.

An action was brought in the County Court at Melbourne by Norman Ogden the younger, an infant, by his next friend Norman Ogden the elder, against the Melbourne Electric Supply Co. Ltd., claiming damages, alternatively at common law and under the Employers and Employees Act 1915, for injuries sustained by him while in the defendants' employment by reason of the alleged negligence of the defendants or their servants or agents. The action was tried before a jury. It appeared that the plaintiff, being one of a gang of men engaged in taking down and removing certain poles carrying electric wires, went up a ladder placed against one of the poles, that the pole broke off just below the surface of the ground and fell, causing the plaintiff also to fall and be injured, and that the inside of the pole had in fact been eaten by white ants. One of the defences taken was that the negligence, if any, was that of a fellow employee for which the defendants were not responsible. The jury found, in answer to questions put to them by the learned Judge, that the pole was defective SO as to be dangerous to an employee working at or on it, that the defendants did not take reasonable care to provide a proper supervision of the poles in their use and control, and that the defect in the pole could have been discovered by the exercise of reasonable care, and they gave a verdict for £410. Judgment was given for the plaintiff for £396 8s., being the difference between the amount of the verdict and a sum of £13 12s. which had been paid to the plaintiff under the Workers'

24 CLR 305

Compensation Act 1915. The defendants applied to the learned OF Judge for a new trial on the grounds (inter alia) that the verdict was against the evidence, that there was no evidence to support the MELBOURNE verdict, and that the damages were excessive. The application having been refused, the defendants appealed to the Supreme Court on the same grounds as those on which they asked for a new trial. The Full Court by a majority dismissed the appeal with costs: Ogden v. Melbourne Electric Supply Co. Ltd. 1.

From that decision the defendants now appealed to the High Court.

On the hearing of the appeal, it being admitted that the defendants did not dispute their liability under the Employers and Employees Act 1915, and that the difference between the amount recoverable under that Act and the amount for which judgment was given was less than £300, the questions were argued whether an appeal lay as of right, and, if it did not, whether special leave to appeal should be granted. But in view of the opinion formed by the Court on the facts of the case neither of those questions was determined.

Starke (with him Dethridge), for the appellants. Owen Dixon, for the respondent.

Cur. adv. vult. The judgment of the COURT, which was read by GAVAN DUFFY J., was as follows :-

This case was tried before a Judge of the County Court with a jury. The jury did not find any general verdict, but answered certain questions submitted to them, and on these findings the Judge entered judgment for the plaintiff for £396 8s. The defendant Company then applied to the Judge for a new trial on the ground, among others, that the findings of the jury were against the evidence and the weight of the evidence. The Judge refused to grant a new trial, and the defendant Company appealed to the Supreme Court of

Victoria. That Court dismissed the appeal, and the defendant

1(1918) V.L.R., 77 ; 39 A.L.T., 111. 24 CLR 306

Company then appealed to this Court.

The judgments delivered in the Supreme Court contain a learned and elaborate discussion

MELBOURNE of the law with respect to the liability of employers for defects in

their plants and premises causing injury to their employees, but argument before us was confined to the meaning and effect of a finding of the jury that the defendant Company did not take reason- able care to provide a proper supervision of the poles in their use and control, and to the question whether there was sufficient evidence to support that finding. It was urged that the meaning of the finding was that the poles were not in fact examined with sufficient care for the purpose of ascertaining whether they were in a defective condition, and that the default found, being that of one Walker, a fellow servant of the plaintiff, did not give him a cause of action at common law. In our opinion it is not merely a finding that the person entrusted with the duty of inspecting the poles did not carry out that duty with sufficient care, but is a finding that the Company itself did not adopt a reasonably effective method or system of inspection. We think there is ample evidence to support the finding SO interpreted, and the result is that the appeal must be dismissed with costs.

Appeal dismissed with costs. Solicitor for the appellants, C. J. McFarlane. Solicitor for the respondent, A. J. Price.