London and West Australian Exploration Co Ltd v Ricci

[1906] HCA 72

4 C.L.K.] OF AUSTF.ALIA.

C)17

[HIGH C:OURT OF AUSTRALIA.]

LONDON AND WEST AUSTRALIAN

Appellants;

EXPLORATION CO. LTD. .

.

Defendants,

ALBERTO RICCI

Respondent.

Plaintiff,

ON APPEAL FROM THE SUPREME COURT OF

WESTERN AUSTRALIA.

Master and He.rvant—Mine—Otvnei— Ner/lifiejice—Fellow-servant—Common employ■ ment—Mines Iteynlation Act 1895 [W.A.), (59 Viet. Mo. 37), sec. 23 (8).

H. C. of A.

1906.

By sec. 23 of the Mines Regulation Act (W.A.) (59 Viet. No. 37), rules are prescribed for the safety of workmen, to be observed wlierever reasonably jy^j, g g jg

Perth

practicable in every mine ; any person contravening or not complying with

the rules is made guilty of an offence against the Act, and so also is the Griffith C.J.,

manager of the mine if the rules are broken by any person whomsoever, Barton and

unless he shows that he has taken all reasonable means to prevent such breach

Higgins JJ.

to the best of his power. By sec. 20 of that Act the occurrence of an accident in a mine was declared to be primA Jade evidence of negligence on the part of the owner and manager ; and by sec. 27 a right of action against the owner for damages was given to any person injured “ through . . . . the non­ observance of the provisions of the Act ” if not solely due to the negligence of the person injured. Secs. 20 and 27 were repealed by the IForleis Co??i- pensation Act (W.A.) (1902 No. 5), which made provision under certain conditions for compensation to workmen for injuries whether caused by negligence or not. An action was brought against the owner of a mine for injuries sustained by reason of a breach of one of the provisions of sec. 23, committed by a fellow-workman of the plaintiff, who abandoned all causes of action other than under that section.

Held : Whether an action did or did not lie under the Mines Regulation Act (W.A.) (59 Viet. No. 37), as originally framed, against the owner of a mine for injuries sustained by reason of a breach of any of the provisions of the Act,

618 HIGH COURT

[1906.

H. C. OF A. although not due to acts of omission or commission on the part of the owner

1906.— (and semble it did not)—such an action does not lie under the Act as amended unless the owner has been guilty of some default for which he would

London and be responsible apart from sec. 23.

W est A us­

tralian

E x­

ploration P fr Hiijgim J. :—The civdl duty under the Act must be co-extensive with Co. Ltd.the criminal responsibility ; and, under the Act as amended, the mere fact

V.that a particular regulation has not been observed does not per se create a

Rioci.

criminal responsibility in the owner. Qucere, whether the doctrine of com­ mon employment is to be imported into actions based on an absolute statutory duty imposed on employers.

Groves v. Lord Wimhorne, (1S9S) 2 Q.B., 402, distinguished.

Decision of the Supreme Court directing a new trial reversed.

The respondent, a miner in the employ of the appellant com­ pany, was ordered to shovel away mullock in a stope. On the wall of the stope there was a mass of mullock hanging, which was un­ safe, and a miner came down and fixed it with two drills driven through tlie mullock into the wall. But when the respondent resumed work there the mullock, bending tlie drills down with its weight, fell on him. He was severely injured, and sued the appellant company, abandoning in the course of the case all causes of action other than that under the Mines Regulation Act 1895, sec. 2.3 (8). Burnside J. ruled tUat the Act imposed no statutory duty upon the defendant company so as to render them liable upon these facts, and gave judgment for the defendant.s. This was set aside by the Full Court, and a new trial ordered. From this the defendant company appealed to the High Court.

Amending Act 1899, 63 Viet. No. 49), in connection with the working of a mine shall be securely pro­ tected and made safe for persons employed therein. The plaintiff contends that the mere fact of the stope having proved unsafe is enough to make the company liable for his injuries. The defendants claim that sec. 23 imposes no duty on the owners except for “ personal ” defaults—acts of commission, not

Pilkington K.C. and Stawell, for the appellant company. (8), which provides that wherever reasonably practicable, every drive and every excavation of any kind (whether at the surface or underground, sec. 11,

4 C.L.ll.] OF AUSTRALIA.

619

of omission. Under sec. 20, the occurrence of an accident was

H. C. OF A.

1906.

made

facie evidence of negligence on the part of the

owner or manager; and sec. 27 made non-observance of the

London and

regulations in sec. 23 a ground of liability for injuries; but sec.

W e s t Aus­

tralian E x­

21 of the Workers Com'pensation Act (1902 No. 5) repealed both

ploration

Co. Ltd.

secs. 20 and 27, and gave a new remedy, which the plaintiff chose

V.

R icci.

to abandon. This leaves sec. 23 of the Mines Regulation Act 1895 standing alone. The whole scope and purpose of this section is to provide that the immediate charge and responsi­ bility of tlie mine shall rest in the hands of the manager. Kvery person who is himself guilty of a breach of sec. 23 is liable to a penalty under the Act; but no civil responsibility is attached to make the owner liable for his manager’s defaults. Sec. 27 gave a remedy of that kind, but it was I’epealed, and the position at common law was reverted to, including the defence of common employment, which is fatal to the plaintiffs cause of action. The manager is distinguished in the Act from the owner or his agent. The manager is the man who has control of mining operations (sec. 13), and is bound to enforce observance of the regulations prescribed by the Act, and on breach of these regulations the manager is liable to a fine (sec. 1(1); but this does not make the owner liable unless he personally infringes the regulations. In no case in England has the owner ever been held liable except on such provisions as sec. 49-50 of 50 & 51 V'ict. c. 58, wherein the “ owner and agent ” are made officiall}' liable as well as the manager. The omission of these words from sec. 23 clearly shows that official liability was not intended for the owner, who cannot be brought within the penal pro­ visions of this Statute unless he is clearlj’ indicated: London County Coimcil v. Ayleshiiry Dairy Co. (1). Even for a breach of regulations on such a matter as ventilation, which prinid facie seems to centre entirelj" upon the owner, he is only liable if he was actually the person who contravened the regulation ; Stokes V. Mitcheson (2); Baker v. Carter (3). Baddeley v. Earl (rranville (4), is the only example of an action brought in Eng­ land against the owner for breach of regulations by his manager ;

(1) (1898) 1 Q.B., 106, at p. 109. (.8) .S Ex. I)., 132.

{■>) (1902) 1 K.B., 857.

(4) 19 Q.B.D., 423.

620 HIGH COURT

[1906.

H. c. OF A. case turned upon the Employers Liuhilify A d making

the owner liable for negligence of a “ person in superintend-

London and ance,” the manager.

TiwuAifEx-

Groves v. Lord Wimhorne (1) the Fadories A d 1878 imposed an absolute statutoiy dut3̂ on the occupier to fence

V. dangerous machines. Even if sec. 23 did impose a liability on

R icci.

the owner not only to statutorji penalties but also to actions, yet this must be read with the rest of the Mines Reyidation A d

1895.      In that connection, the adequate and only remedy for

breach of sec. 23 was given by sec. 27 ; and that remedy, which excluded all others, was taken away by the repeal of that section by the Workers Compensedion A d 1902. The abolition of sec. 27 did not leave that right of action at large; the un­ repealed part of the Mines Regulation A d 1895 must be con­ strued with regard to the repealed portion : Attorney-General v. Lamplough (2); CoucJt v. Steel (3); Ross v. Rugge-Price (4).

[Griffith C.J. referred to Hardcastle on Statutes, 1901 ed., p.

240 ; Pasmore v. Oswaldhvistle Urban Council (5).]

O’Halloran v. Great Boulder (6); and the defence of volenti non jit in ju ria and “common employment” were made not available to the owner unless his statutory duty to see that the regulations were observed had been fulfilled.

Villeneuve Smith {F. Harney with him), for the respondent. tection of the workers in mines. Even if sec. 27 never existed, there would still have been a right of action against an owner for injuries arising out of non-observance of the rules in sec. 23, which it was his duty to observe or see that they were observed. Sec. 27 was only passed to do away with the defence of con­ tributory negligence :

Sec. 5 of the Mines Regulation Act 1895, which is unrepealed, expressly recognized other rights of action as well as the penalty it provided for. Under sec. 23, “ every person ” who contravenes the regulations is made liable, and so is the manager also. In sec. 28, any person who contravenes the regulations, or who “by

(1) (1898) 2 Q.B., 402.

(5) (1898) A.C., 387, at p. 394, per

(2) ;i Ex. D., 214, at p. 227.

Lord Hahhury L.C.

(3) 3 El. & Bl., 402, at p. 414.(6) 3 W.A. L.R., 41.

(4) 1 Ex. D., 269.

4 C.L.R.J OF AUSTRALIA.

621

the negligence of himself or his agent ” causes any person to be

injured or killed, is liable. “ Agent” here must mean the

_̂_ ^

manager, and “ by himself or his agent ” must mean the owner, L osdos and

because “ agent ” is defined in the Act as the owner’s repre-

senlative. Sec. 28, therefore, like the English section, actually

does join the owner and agent with the manager in liability. It

i-.

is the owner who substantiallj^ works the mine, and sec. 2.̂ must

___

be taken to refer primarily to the owner, rather than to indi­ vidual miners and strangers. The owner alone could supply safety cages (sec. 23, rule 30), ventilation (rule 1), signalling apparatus (rules 10-11) ; and nearly all the duties imposed by sec. 23 are such as the owner would observe and pay for. Simi­ larly the owner must see to the observance of rule 8, that the drives and ways of the mine are kept safe. This is an absolute statutory duty ; yet in its observance the owner supplied two iron drills to pin up the mullock, which were quite useless for the purpose; timbering or pulling down being the onlj' safe way. This negligence was imputable to the owner as well as the manager, and both can be punished; Wynne v. Forrester (1). Idle owner is responsible as well as the manager for neglect of any matter which is within his province, c.q. the non-employment of a certificated engine-driver.

[(iRiFKiTH C.J.—Some duties are incumbent on owners—e.y. safety-catches for cages ; but some are not—e.y. that charges shall not be tamped with steel rods. Can you make the owner liable for the observance of duties that can only be observed, like this, from time to time ; and is not the safe conduct of mining operations in drives and excavations one of these ?]

It was the intention of the legislature to make the owner an insurer of the safety of the ivays of the mine. On the repeal of secs. 20 and 27 of the Mines liegidation Act 1895 the worker was left with his full rights, not only at common law and under E^nployers Liability Act, but also all such as he would have had if sec. 27 had never existed, ie. with the defence of contributoiy negligence restored to the owner.

Where an injury results from breach of a statutory duty in­ cumbent on the owner, “ common employment ” is no defence to

( 1 ) 5 C .P .D . ,

."01.

622 HIGH COURT

[1906.

H. C. OF A. an action either at connnon law or under the Mines Regulation

Act 1895 ; Paterson v. Wallace (1); Smith v. Baker (2); Brydon London AXD v. Stewart (3); Bartonshill Coal Co. v. Reid (4); Roberts and

TKAOA:f E\̂ Wcdlace’s Master and Servant,

147-149.

Ĉo!̂ 1Ttd!' [Griffith C.J. referred to

Clarke v. Holmes (5).

Riccr.

B a r to n J. referred to Priestly v. Foivler (6).

H ig g in s J. referred to Dickenson v. Fletcher (7).]

Pilkington K.C. in reply. The common law right of action cannot be claimed now; it was abandoned at the trial : Nevill v. Fine A rt and General Insurance Co. (8 \ If it may be raised, yet there was no negligence imputable to tlie defendants, who were only bound to select competent servants and to supply them with proper and adecjuate materials for the necessary work : Wilson v. Merry (9).

[B a r to n J. referred to Hedley v. Pinkney & Sons Steanishqy

Co. (10).]

In Paterson v. Wallace (11) the jury found personal negligence against the owners. But in the present case the owners can­ not be held liable unless they failed to supply proper ap- jiliances ; they are not bound to see that those and no others are used by the men. The Statute does not make the owner an insurer of safety in his mine ; it only requires him to take steps to secure safety so far as is practicable. So long as he is not a personal intervener in the breach committed, he is not liable for a penalty or to an action: Baker v. Carter (12). The words “ wherever rea.sonably practicable ” in sec. 23 clearly negative the idea that the owner is to be an insurer of safety in his mine. Those words are absent from the Factories Acts. The owner is never once mentioned in sec. 23, and an absolute duty therefore cannot bo fastened on him. The owner especially cannot be made ^wasi-criminally liable to a penalty for the acts or defaults of his agent unless expressly indicated: Wynne v.

(1) 1 Macq. H.L. Gas., 748.(7) L.R. 9 C.P., 1, at pp. 7-8.

(2) (1891) A.C., ;I25, at p. 338.(8) (1897) A.C.,68.

(3) 2 Macq. H. L. Cas., 30.(9) L.R. 1 H.L. (Sc.), .326, at p. .331.

(4) 3 Macq. H.L. Cas., 266.(10) (1894) A.C. 222.

(.6) 31 L.J. Ex., 356 ; 7 H. k. N., 937.(11) 1 Macq. H.L. Cas., 748.

(6) 3 M. & VV. 1, at pp. 6-7.

(12) 3 Ex. D., 1.32.

623

4 C.L.R.]

OF AUSTRALIA.

Forrester (1); FletcJter v. Dickenson (2)—in both of which cases R- C. of A.

the English Act expressly laid respon.sibility on the owner.

^ ^

It is clear that the owner was not meant to be liable as an Losdos and

, _ W EST Ads-

in.surer, because he is guilty of an offence in having dangerous tkauas Ex­

ground in his mine only after an inspector has reported it to the

C.'o. Ltd.

V.

manager under the Mines Regulation Amendment Act 1904,

R icci.

(4 Edw. VII. No. 37), sec. 2 (v.), and the manager has after the

report failed to remedy the defect.

Sec. 27 deals with civil, and sec. 28 with penal, responsibili­ ties. Sec. 27 provided a new, complete, and adequate remedy by way of action ; and this was exclusive, because notice had to be given under the section before action could be brought; there was no common law remedy; a breach of sec. 23 was actionable only under sec. 27, and when sec. 27 was repealed the whole civil remedy was gone.

Cur. adv. vulf.

G r if f it h C.J.

This was an action brought by a working i3th xovember.

miner against his employers, claiming damages for an injury'

sustained by him in the course of his employ'ment. The claim

was threefold:—(1) For breach of duty of the defendants at

common law to provide a reasonably safe place for the plaintiff

to work in ; (2) Under the Employers Liability Act 1894, for

negligence of persons in the defendants’ service for whose acts

they were responsible under the provisions of that A ct; and (3)

in respect of a supposed cause of action alleged to arise from

non-compliance with the provisions of the Mines Regulation Act

.

1895. Before the trial the two first grounds of action were abandoned, and the case was tried, and now comes before us for decision as a claim based on the last mentioned Act only', it being admitted that at common law the defendants were not liable to the plaintitf for the default of the person to whose negligence the injury was attributable.

The provisions relied upon are contained in sec. 23, and the par­ ticular duty' of which a breach is alleged is that prescribed in Rule 8.

(1) 5 C.P.D., 361.

(2) L.R. 9 C.R., 1.

624 HIGH COURT

[1906,

H. C. OF A. Section 23 begins as follows:—“ The following general rules

shall, wherever reasonably practicable, be observed in every

Londo.v and mine.” Then follow a number of provisions adapted, and

\^'EST Aus­

tralian

evidently intended, to secure the safety of workmen. Some of

PLORATION

Co. Ltd.them relate to duties which from their nature cannot be per­

V.          formed without the active co-operation of the owner, others to

R icci.

precautions to be taken by workmen and other persons in the

Griffith C.J.mine, while others again relate to the manner of carrying on

actual mining operations.

Rules 3, 4, 9, 10, 13, 14, 23, 24, relat­

ing to appliances, are instances of the first class. They, in effect, lay down specific rules to be observed in addition to, or perhaps in substitution for, the obligation incumbent on the owner at common law to provide reasonably safe appliances. Rule 2, relating to the use of explosives in a mine, and rule 5, which says that no person shall place anything in a man-hole or place of refuge in such a manner as to prevent access to it, are examples of the second class. Rule 8, which is as follows :—“ Every drive and every excavation of any kind in connection with the working of any mine shall be securely protected and made safe for persons employed therein,” is an example of the third class.

Sec. 23, having prescribed these Rule.s, 35 in all, concludes as follows:—“ Every person who contravenes or does not comply with any of the general rules in this section shall be guilty of an offence against this A ct: and in the event of any contravention of, or non-compliance with, any of the said general rules by any person whomsoever being proved, the mining manager shall also be deemed guilty of an offence against this Act, unless he proves that he had taken reasonable means by publishing, and to the best of his power enforcing, the said rules to prevent such con­ travention or non-compliance ”

It is contended by the plaintiff that this section imposes an absolute and unqualified obligation upon the owner of a mine to see that its provisions are complied with, and that an action will lie against him to recover damages for any injury sustained by reason of an omission, by whomsoever made, to comply with any of them; that in effect the owner warrants such compliance and that in such a case, as was held by the Court of Appeal in the

4 C.L.K.J OF AUSTRALIA.

62.5

case of Groves v. Lord Wimhorne (1), the defence that the

H. C. OF A.

rule respowleat sup>erior does not apply because the negligence

1906.

complained of is that of the plaintiffs fellow servant, which is

London and W e.st A us­

commonly called the defence of common employment, cannot be

tralian Ex­

set up. On the other hand, it is contended by the appellants

ploration

Co. Ltd.

that this is not the natural construction of the section, and that,

V.

R icci.

even it it is grammatically open, comparison of its language with

that of English Statutes upon which it is modelled, and a con­

Griffith C.J.

sideration of tlie history of the legislation on these and cognate

subjects, will exclude such a construction.

The case came on for trial before Burnside J. and a jury. At the conclusion of the case for the plaintiff that learned Judge directed judgment to be entered for the defendants, being of opinion that the absolute obligation or warranty set up by the plaintiff was not to be found in the Statute. The Full Court reversed his decision and directed a new trial.

In my opinion the question is purely one of construction of the language of the legislature. We are not concerned with any reasons which might a priori be supposed to influence them, but are bound to interpret the language in which they have thought fit to express their intentions.

Up to the year 1894 the respective rights and obligations of employers and workmen in Western Australia were regulated bĵ the common law, under which in an action by a workman against his employer founded upon negligence the defences of common employment and contributory neglige^ice were both open. The first local Statute on the subject was the Employers Liability Act, passed in 1894, which, as pointed out by this Court in Metcalfe v. Great Boulder Proprietary Gold Mines lAmited (2) .altered the law by excluding the defence of common employment in certain specified cases, and in those cases onlj".

The Mines Regulation Act now under consideration, passed in 1895, was the next alteration of the law. I will directlj’ call attention to the express alteration which it made. I will first briefly refer to the history of the English legislation on which the local Statute is modelled, and to the variation in the language which the local legislature has deliberately made.

(1) (1898) 2 Q.B., 402.

(2) 3 C.L.R., 543.

VOL. IV.

626 HIGH COURT

[1906.

H.C. OF A. The first English Statute in which a section in the form of sec.

1906. 23 of the Mines Regulation Act is to be found is tlie Act 23 &

London and

24 Viet. c. 151, passed in 1860. Sec. 10 of that Act began as

W est Aus­

tralian E x­

follows :—“ The following rules (hereinafter referred to as the

ploration Co. Ltd.general rules) shall be observed in eveiy colliery or coal mine and

V.

ironstone mine by the owner and agent thereof.”

Then followed

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15 rules. Sec. 22 imposed a penalty not exceeding £20 for any

Griffith C.J.neglect or wilful violation by an owner or principal agent of any

general rule the provisions of which ought to be observed by such owner or principal agent. This Act was repealed by the Goal Mines Regulation Act 1872, which in sec. 51 provided :—“ The following general rules shall be observed, so far as is reasonably practicable, in every mine to which this Act applies.” Then fol­ lowed 31 rules, and the section concluded with words identical with the concluding paragraph of sec. 23 now under considera­ tion, except that in place of the words the “ mining manager shall also ” the words “ the owner, agent, and manager shall each ” are used. This Act was in turn repealed by the Goal Mines Regula­ tion Act 1887, of which sec. 49 begins in the same words as sec. 51 of the Act of 1872. The concluding paragraph of that section is re-enacted in identical language as sec. 50. Thus the law stood in England when the legislature of Western Australia was minded to adopt some of its provisions. Before dealing with the differ­ ences between the form of the English Statute and that adopted in Western Australia, I pause to remark that from the passing of the Act of 1860 until the passing of the Employers L iability Act 1880 it does not appear to have occurred to any one that the defence of common employment was not open to an employer in whose mine a breach of the general rules had been committed. Again, from 1880 to the passing of the Workers Gompensation Act in 1897 it does not seem ever to have been suggested that that defence was not available in any case which did not fall within the Act of 1880. The main object of the Workers Gompen­ sation Act was apparently to do away with this defence as well as with that of contributory negligence,except in the cases specifically mentioned. It seems strange, if an action would during all the.se y êars have lain for a mere breach of the statutory rules in which the employer was not personally concerned, that it did not occur

4 C.L.R.] OF AUSTRALIA.

627

to anyone to bring it, and still more strange that the legislature

should; wlien by the Employers Liahility Act they abolished the

defence of common employment in certain cases, have so care­

Lo:<don- and

W est Aus­

fully restricted the newly conferred rights, as they did in the case

tralian Ex­

of both the later Acts. This argument is, however, of coui’se

ploration

Co. Ltd.

not conclusive.

V.

R icci.

The law of Western Australia and the history of English legis­ lation being then as I have recited, let us consider what the

Griffith C.J.

legislature did. In sec. 23 they omitted from the concluding paragraph the words “ owner and agent.” It was at first con­ tended before us that, notwithstanding the omission of these words, the owner is liable under the first member of the enact­ ment whenever there has been a failure by any one to comply with the rules?. This point was however given up. It is clear that under the English Act the owner is not liable in every such case, for the second branch of the enactment makes express pro­ vision for cases in which he is not so liable. I think it is clear that under the local Act, as well as under the English Act, the general rule applies, that a person is not liable to the criminal law for the acts of his agent unless such a liability is imposed by express language or necessary implication.

But it is said that sec. 23, although it did not impose any penal liability, created a civil liability of such a nature that the employer in effect became an insurer. Was this the intention of the legislature ? In ascertaining their intention regard must be had to the whole Act as pa.ssed, and not to an isolated section, and the fact that other provisions have since been repealed can­ not affect the bearing wliich they have on the construction of the Act when originally passed. We find then that the legislature made express provision as to the nature and extent of the liability intended to be imposed upon the owner.

Sec. 27 provided :—“ If any person in or about a mine suffers injury in person, or is killed, owing to the negligence of the owner of such mine or his agent or agents, or owing to the non- ohservance in such mine of any of the provisions of this Act (such non-observance not being solely due to the negligence of the person so injured or killed), the person injured, or his personal representatives, or the personal representatives of the person so

628 HIGH COURT

[1906.

H. C. OF A. killed, may recover, in any Court of competent jurisdiction, from

the owner of such mine compensation by way of damages as for a Londo.v and tort committed by such owner. Provided that, in estimating the

West A us­

tralian J'̂ X-

damages and deciding the question of costs, due regard shall be

PLORATIO.VCo. Ltd.had to the extent (if any) to which the person injured or killed

V.          contributed, by any negligence on his own part, to the injury or

R icci.

death.” Sec. 28 is as follows;—“ Any person who contravenes or

Griffith C.J.does not comply with any of the provisions of this Act, or who,

by the negligence of himself or his agent, causes any person to be injured or killed, shall be deemed guilty of an offence against tliis Act.” It was also enacted, by sec. 20, that the occurrence of an accident in or on a mine should he prim a facie evidence of negli­ gence on the part of the owner and the manager. Section 27, which was afterwards, in 1899, limited to persons employed in or about a mine, purported to create a new right of action against tlie owner for any injury sustained by reason of the non-observance of any of the provisions of the Act. Sec. 28 imposed penal consequences upon an owner in some cases for the negligence of his agent, but not in all. I think that tlie effect of that section is limited to the imposition of the penalty, and that it does not of itself confer a right of action. It is contended that sec. 27 was declaratory only. I doubt whether any part of it was merelj'’ declaratory. It certainly affords no internal evidence of having been so intended; and, if it is so regarded, the amendment of 1899 was also futile.

In 1902 the local legislature was minded to adopt the English iror/je/’.v Compenmtion Act, which they did, but at tlie same time they repealed secs. 20 and 27 of the Mines Regulation Act. In effect, therefore, they substituted for the rights created by sec. 27 those created by the Workers Compensation Act, which, for this purpose, must, I think, be read with the Mines Regulation Act as part of a connected series of legislation on the same subject.

The construction contended for by the plaintiff is therefore prim d facie improbable. Contempor(mea, expositio, shown not only by the total absence of any assertion of the supposed right of action for upwards of forty years but by the course of legisla­ tion, much of which was unnecessary if such a right existed, is

4 C.L.R.J OF AUSTRALIA.

629

atrainst this construction.

Is there then any other which is open R- C. of A.

upon the language, and which will give effect to the intention of

the legislature so far as they have expressed it ?

I think there London and

West Aus­

is.

tralian E x­

ploration

The rule to be applied in determining whether, when a Statute

Co. Ltd.

imposes a penalty for a breach of a statutory obligation first

V.

R icci.

created by it, a civil action will lie to recover damages occa.sioned

by the breach was laid down by Lord Cairns L.C. in the Court of

Griffith C.J.

Appeal in the case of Atkinson v. Neivcustle Waterworks Co. (1). Regard must in every case be had to the whole purview of the Statute to ascertain whether the legislature so intended. In the case of the Statute now under consideration, as in the case of the Statute under consideration in Atkinson’s Case, I think it is impos­ sible to suppose that the English legislature, when they passed the various enactments on which sec. 2.3 is modelled, intended to make the employer an insurer against a breach of every one of the numerous rules laid down in the section—rules of varying nature and importance, as to some of which he would, and as to others of which he would not, have any practical means of per­

sonally enforcing obedience.

In my opinion the object of ,sec. 23,

like the sections in the English Acts upon which it is modelled, is to prescribe precautions to be taken to ensure safety in mines. It follows that, when any of the prescribed precautions are not observed, there has been want of due care, or, in other words, negligence. I think that the failure to comply with the rules is sufficient, if not conclusive, evidence of negligence on the part of some one. Whether the owner is responsible for it or not is another question. Thus, in the case of rules prescribing the nature of appliances to be used in a mine, an owner who fails to observe them would, I think, expose himself to liability on the same principle on which he would be liable for bx'each of his common law obligation to provide reasonably fit appliances. Rut the same consequences do not necessarily follow from a mere failure to comply with rules relating to matters as to which his liability at common law depends on different considerations. I do not think that the section was intended to deal at all with the question of the general liability at common law of a principal

(1) 2 Ex. D., 441.

i

630 HIGH COUR'I

[1906.

H. C. OF A. for the negligence of his agent, or with the defence of common

employment. With that subject the legislature had expresslj'

London and

dealt in the previous year (1894); and it is plain that in 1895

W est A us­

they either did not apply their minds to the question whether

tralian

E x­

ploration

sec. 23 would of itself exclude such a defence, or that they

Co. Ltd.

r.

thought that it would not, and therefore enacted .sec. 27. The

R icci.same considerations apply to the construction of sec. 28, which I Griffith C.J.

think, as I have said, merely imposed a penal liability.

A change of intention on this point cannot be inferred either as a matter of fact or of law from the repeal of sec. 27 and the substitution of the provisions of the Workers Compensation Act. For these reasons I am of opinion that sec. 23 does not in all cases impose an absolute obligation upon the employer, such as would bring him within the rule laid down in Groves v. Lord Wimhorne (1), and that if the only evidence of negligence against him is a failure by the plaintiffs fellow servant to comply with some direction contained in sec. 23 the common law answer of common employment is not excluded. In other words I think that sec. 23 does not, of itself, confer any new right of action, but only lays down rules to be applied in actions for negligence at common law. In the course of the plaintiffs case it appeared that the failure to comply with Rule 8 was due to the negligence of a fellow servant of the plaintiff, for whose default the defend­ ants would have been liable under the Employers Liahility Act if the plaintiff had taken the necessary steps to claim the benefit of that Act, but were not liable in an action at common law. I think, therefore, that Burnside J. was right in directing judgment for the defendants, and that this appeal must be allowed.

B a r to n J. The appellant company were defendants and the

respondent was plaintiff. The action was for compensation for injury sustained by reason of mullock falling upon the plaintiff while employed by the defendants in their gold mine.

The claim was founded (1) negligence at common law ; (2) the provisions of the Mines Regulation Act 1895 and its amendments; (3) the provisions of the Employers TAahility Act

1894.       The plaintiff expressly abandoned the claims at common

(1) (1898) 2 Q.B., 402.

4 C.L.K.] OF AUSTRALIA.

631

law and that under the Employers Liahility Act, and at the H- C. of a .

trial he ba.sed his claim upon one cause of action only, for, as the

1906.

learned Judge who tried the case has stated, “ he claims that he

London and

was injured by reason of the defendant company having failed to

comply with the duty which he allege.s is cast upon it by the pro­

PLORATION

Co. Ltd.

visions of the Mines Regulation Act 1895 and its amendments.”

V.

He .says that the Mines Regtdation Act imposes a duty on the

R icci.

defendant company as owner of the mine, and that as his injury

Barton J.

arose from the failure of the company to conform to that duty, he must succeed in this action. It will be observed that there is no claim made under the Workers Compensation Act 1902. As the plaintiff has suffered “ personal injury by accident arising out of and in the course of his employment,” he would probably have succeeded in a proceeding under that Act if only he had complied with its conditions—see sec. 11. Perhaps he wa.s in doubt whether to sue the defendant company or another, for he .sued both alter­ natively, and probably the doubt caused considerable delay. I should be glad if these facts came under the consideration of the company after the determination of this appeal, which I fear must now be allowed.

d’he action came on for trial before Burnside J. and a jury, and evidence was given that the plaintiff was working at a stope in one of the underground levels as a shoveller. He had been there a couple of hours when a miner came down with two drills. These drills he fixed for the support of some overhanging mullock and went away. The plaintitf had worked for some two hours longer when, the drills proving insufficient to support the over­ hanging material, it came down on him and seriously injured him. There was evidence that the stope was unsafe because of over­ hanging mullock during the shift preceding that in which the plaintiff was injured, and that the bad place had not been timbered. On this evidence the defendants moved for a nonsuit, and after hearing argument. His Honor granted the application, and, as he might under the law of this State, directed a verdict for the defendant companj'. Judgment accordingly passed for

them.

Subsequently the Full Court set aside the judgment and

ordered a new trial. It is against that order that the present

appeal is brought.

632 HIGH COURT

[1906.

H.C. OF A. It would be idle to repeat the histoiy which ha.s been given of

1906. the legislation in England and in this State on the subject of the

London and liability of employers, the regulation of mines, and compensation W est Aos to workei’s. But it is well to hear in mind that here the

TRALiAN

E x­

ploration

Co. Ltd.Employers Liahility Act was passed in 1894, the J\[incs Reyida-

V.          tion Act in 1895, the Mines Regulation Act Amendment Act in

R icci.

1899, and the Workers Compensation Act in 1902.

Barton J.Now, sec. 27 of the Mines Regulation Act, as amended by tlie

Act of 1899, sec. 13, had while it existed two, perhaps three, very important effects. Any employd in a mine injured b}" the negli­ gence of the owner or his agent, or injured apart from his own sole negligence, by reason of the non-observance in the mine of any provision of the Act, was given the right to recover compen­ sation in damages against the owner as for a tort committed by the owner himself, and by sec. 20 the mere occurrence of an accident in or about a mine was evidence of neglect on the part of the owner and the manager. If the injury caused death, similar rights were given to the personal rejiresentative. Thus, in the first place, the defence known as “common employment” was cut away, whether the injury arose from ordinary negligence or from the non-observance of any provision of the Act. Secondly, which­ ever of these things was the cause of the injury, the existence of contributory negligence was no longer available as a defence, but was only to be estimated in its degree as affecting the question of damages and the award of costs. Thirdly, it may be, though it is not in this case necessary to be positive on that point, that the defence of volenti non fit in juria was taken away. Here then were great extensions of the pre-existing rights of the miner, making his position much stronger than it had been under the Employers Liahility Act. At tlie same time there was not, as there is in the last-named Act (sec. 6) any accompanying limita­ tion of the amount of damages recoverable. Sec. 14, however, of the Act of 1899 rendered it necessary, in the absence of an excuse held by the Judge to be reasonable, that notice of the injury, its cause and date, should be served on the owner, agent, or manager within three months, and the action be begun within six months from the date of the accident.

Then came the Workers Compensation Act 1902, which makes

4 C.L.K.] OF AUSTRALIA.

633

the following ditterences in the law we are di.scussini{. By .sec. 21

fl- O. of a .

it repealed secs. 20 and 27 of the Mines Regulation Act 1895 and

secs. 13 and 14 of the

Regulation Act Amendment Act London and

189.9—that i.s, the whole code, so to .speak, of the INJines Eegula-

K̂A*L[A:fEx-

PLORATION Co. Ltd.

tions Acts relating to civil remedies.

Had it stopped there the

miner would have retained only the remedies he had gained under

K.

R icci.

the Employers Liahility Act 1894, in addition to his original

remedy by action for negligence at common law, which latter

Barton .J.

proliably was not taken away by the repealed sections. But the Act of 1902 by no means stops at that point. Subject to the giving of the notice, making of the claim, and adoption of the procedure prescribed, it makes the employer liable to pay com­ pensation inter alios to a worker employed on or in any mine, or in case of death resulting from tlie injury, to tho.se dependent on him, upon a scale fixed in a .schedule, “ wherever personal injury by accident arising out of and in the course of the employment is caased to a worker ” (sec. 6). That is to .say, in proceedings under the Act of 1902, the emjdoyer can no longer, wliatever the facts may be, set up either that the worker has contributed to his own injury; or that lie ha.s caused the injury .solely by his own negligence (unless he has caused it liy serious and wilful miscon­ duct); or that the negligence was tliat of a fellow-workman, and not of the master ; or that the worker has voluntarily under­ taken a dangerous employment, with full knowledge of and readine.ss to undergo the attendant risks. But most important of all, lie cannot set up that either he or any one for whose conduct lie i.s responsible has not been guilty of any negligence at all. All these pre-existing defences are now swept awaj' where the miner resorts to this Act for redress. But in addition it gives him other benefits, of which it is enough to mention these. From the time of the accident, the amount of compensation or damages to which he may become entitled, whether under the Act or independently of it, becomes, even before it has been ascertained, a charge on his employers’ interest in the mine and the land on which it i.s (sec. 17), and he has a first charge for his compensation or dam­ ages on any sum due to the employer from insurers in respect of it, if the employer becomes bankrupt or compounds with his creditors, or if the emplojdng company commences to be wound

634 HIGH COURT

[1906.

H.C. of A. [sec. 1-f ). Furtlier, the Act i.s prevented from atfecting -an}’

1906. civil liability of the employer indepeiidentl}’ of its provi.sions,

London and where the injury is caused by tlie neglijjence of the employer or

W est A ds-

TitAUAN E x­

of anyone for whose act or default the employer is (of course,

ploration

Co. Ltd.civilly) responsible (sec. 7 (1 )); and the worker may claim com-

V.          pen.sation under tlie Act or take anĵ otlier proceedings open to

R icci.him independently of the Act (sec. 7 (2)), though this provision, Barton J.it need scarcely be said, does not revive any liabilitj' of the

employer under an}* repealed enactment. Of course, however, the worker cannot make the employer pay compensation both under the Act and in an action outside the Act.

Thus the Act of 1902, while it does not affect to touch rights of action under the Employers Liahility Act, and in fact ex- pressl}* guards against affecting, i.e., diminishing, any civil liability of the employer independently of its own provisions in cases of negligence, takes away the added rights and remedies given by the Mines Regulation Acts, and prevents the mere occurrence of an accident being any longer prim d facie evidence of negligence on the part of the mine owner or manager—a provision merely ancillary to such added rights and remedies, and therefore proper to stand or fall with them. Then it makes entirel}' new jirovision enabling the miner, in common with other workers, to obtain the compensation provided for if [he proceeds under this Act, without fear of any of the ordinary defences, and it gives the worker several other advantao-es. Taking all these things together, what is the inference ? The intention with regard to the miner must have been to substitute the civil rights and remedies given by the new Act for those which he had under the Mines Regulation Acts, and to preserve existing rights both under the Employers Liahility Act and at common law for workers generally, no doubt with the object of placing the miner and other classes of workers on a fair level in re.spect of their civil remedies. And this, in my opinion, the Act of 1902 carefully doe.s. But it is argued that having regard to sec. 23 of the Mines Regulation Act 1895 the right of the miner to recover in this case is established by the case of Groves v. Lord Wimhorne (1), and that it is not affected by the repeal of sec. 27 of that Act.

(1) (1898) 2 Q.B., 402.

4 C.L.R.] OF AUSTRALIA.

635

I am of opinion tliat this case is not governed bj' Graven v. Lard H- C- o*'

Wiviharne (1), and that the history and meaning of the legis­

lation of 1895 to 1902 shows that actions of the class of that London and

ca.se are not maintainable in these circumstances, Before that thalian Ex­

decision could apply a breach of the statutory rule on which

ploration

Co. Ltd.

this case is founded (sec. 28, sub-sec. 8) must be brought home

V.

R icci.

to the owner.

I am of opinion that there is nothing in the

Mines Regulation Acts to make the owner personally responsible

Barton J.

for breach of any of the rules unless he has been guilty per­ sonally of an active breach or of personal failure in the per­ formance of that rule. In this case, “ wherever reasonablj’ practicable, . . . . (8) Eveiy drive and every excavation of any kind in connection with tlie working of a mine shall be securely protected and made safe for persons employed therein.” Here is a company, having their registered office, we may take it, not on the mine, but employing a manager, whose competence is not in question, to be con.stantly on or about the mine, as he must be in order to maintain tlie supervision which the Act reiiiiires. As the underground work progresses, the drives and excavations must be from time to time, as they are opened up, protected and secured. That is a precaution which in the nature of things the directors must leave to the manager, tlie person in immediate charge of the mining operations. To conform to the many reipiirements of the Act he must have implied authority to pnrcha.se siicli material and engage such labour as from time to time is necessary for the daily progiuss of the work and the security of the miners, and probably all that the directors know—and the company .sought to be made responsible cannot know so much—is that cheques for sucli material and labour have afterwards to be signed periodically. The close and daily supervision of work in the mine is very different from that general direction of affairs whicli is the province of a board of directors, such as the provision of proper means of ventilation and the like. Mining operations are for the manager to super­ vise. If a private owner of a mine or a director of a board directly and personally interfered so as either to commit an active breach of a rule relating to the ordinary work in the

(1) (1898) 2 Q.B., 402.

636 HIGH COURT

[1906.

H. c. OF A. mine, or to prevent compliance witli .such a rule, the (juestion

would tlien, but not till then, arise as to Ins personal liability

London and under sec. 23.

TRATiAifEx

much for personal contravention or default under sec. 23.

PJ.OKATION

Co. Ltd.In Groves v. Lord Wimhorne (1), on failure to erect or maintain

V.          the necessary fencing, the factory in which the section (Factory

Riccr.

and Workshop Act 1878, sec. 5), was contravened was under

Barton J.that section to be deemed not to be kept in conformity witli the

Act, and otlier sections stated clearly that the person re.sponsible in that event was the “ occupier ” who irre.spectively of Ids liability to tines was held in the ca.se cited to be tlius made personally liable to an action at tlie suit of the person injured. There is no resemblance between tliat case and the present one, and it does not go to show a personal liability of the owner in this ca,se for what has occurred. But further I think that actions of the class of Groves v. Lord Wimhorne (1) cannot be maintained in circumstances like these of the present case, having in view the history and meaning of the legislation. I do not advert to the differences between this Act and the prior English ones, which have already been explained, but to this consideration. When the Act of 1895 was passed, having then in it secs. 27 and 28, it drew a strong distinction between penal liabilities and civil remedies, and dealt separately with them. It made contravention of or non-compliance with the general rules, inter alia, penal, and it provided by the now repealed sections for the enlargement of the civil rights or remedies of miners against owners. Now, we are entitled to look at repealed sections for the purpose of gathering the meaning of the un­ repealed portions; Attorney-General v. Lamplouyh (2). There Hramwell L.J., said :—“ Then it is argued that you cannot look at the repealed portion of the Act of Parliament to see what i.s the meaning of what remains of the Act . . . . If it were an accurate opinion, this consequence would follow, that an Act of Parliament which at one time had one meaning would by the repeal of some one clause in it have some other meaning.” And Brett L.J. (as he then was), said (3):—“ Where in the Statute

(1) (1898) -2 Q.B., 402.

(2) 3 Ex. D., 214, at p. 227.

(3) 3 Ex. D., 214, a t p. 231.

4 C.L.R.] OF AUSTRALIA.

637

wliich i.s to be repealed there are separate and di.stinct enact- R- C. of a.

inents, and the repealing Statute .simply repeals one of these

enactments, it seems impossible to con.strue the meaning of the London and

repealing Statute to be that it thereby gives a different meaning

to the enactments with which it does not assume to deal at all.”

ploration

Co. Ltd.

Taking then sec. 23 and other provi.sions as to offences against

V.

R icci.

the Act together with sec. 27 as it stood when enacted, is it not

plain that the latter section, by giving a distinct and enlarged,

Barton J.

in fact a practically new civil remedy to the miner in re.spect of “ the non-observance in such mine of any provision of the Act,” negatived the inference that ordinary actions for breach of statutory duty causing injuiy, such as that of Groveti v. Lord Wimbornc (1), were sanctioned by sec. 23 and similar provisions apart from sec. 27 ? In my opinion that is clear, apai’t from anj thing in the repealing Act which gave a new or preserved an old remedy, and therefore the repeal did not make anything actionable under the Mines Kegidation Act that was not actionable before the repeal. Coming now to the repealing Act, which i.s the Workers Compensation Act 1902, we find sec. 7 (1), which prevents any part of that Act, including the repeal enacted by sec. 21, from affecting “ any civil liability of the em- jjloyer independently of the Act where the injury is caused by the negligence of the emplo3’er or of .some person for who.se act or default the employer is responsible.” That, however, does not alter the fact that the Act takes awaj", in exchange for the new rights given, the action against the owner under the repealed sec. 27 fur, among other things, mere non-observance of the provisions of the Act of which it forms a part. It follows that, the action under sec. 27 of the Mines Kccjiilatiun Act 1895 for mere breach of statutory dut}' being abolished, there remain the following remedies:—(1) Action under the Employers Liahility Act ] (2) Action under the Workers Compensation Act; (3) Action for negligence, including breach or default in the perfor-mance of statutory duty, but only where such breach or default is negli­ gent. The action as now before us is not framed under any of the.se classes. I nnxy .say that had it come under the third, it must have failed ; for even assuming that there was evidence of

(U (1S9S) 2 y .B „ 4U2.

638 HIGH COURT

[1006.

H. C. OF A. negligence, yet such negligence would have been that of a fellow- servant, and the defence of connnon employment woidd have

London and been fatal to the claim. In my opinion, therefore, the action

TRAUAN̂ fe. this appeal ought to be allowed, the order appealed from

L/0. L t d ,

discharged, and the judgment of Bttrnnide J. for the defendant

V.           company restored.

R icci. Barton J.

H iggins J.

I concur with the decision of the Court, but on

somewhat different grounds, which I ought to state. Sec. 27 of the Mines Regulation Act 1895 has been repealed by sec. 21 of the Workers Compensation Act 1902, and the (piestion is as to the effect of the repeal. So long as that section stood in the Mines Regulation Act, it was clear that the employer was liable civilly in damages for injury suffered by the employe owing to negligence or to the non-observance in the mine of any of the jjrovisions of the Act, not only for his own failure to comply with the provisions, but for the failure of any one else. The Workers Compensation Act gave the worker a remedy against his employer in a great number of cases, whether there was neg­ ligence or non-observance of the provisions of the Mines Regula­ tion Act or n ot; and, apparently, the draughtsmen of the Workers Compensation Act imagined that there was no further use for sec. 27, or for sec. 20, which made the occurrence of an accident 'primd facie evidence of neglect, and he therefore repealed both sections absolutely. We may conjecture that the legislature did not mean to do more than strike out such parts of the Act as seemed to assume that negligence was an essential part of the cause of action. But we cannot act on conjecture. To hold the owner liable in this action, we mu.st find something in the Mines Regulation Act, as it now e.xists with its amendments, imposing a duty on the owner w'hich has not been fulfilled. In the present case, an injury of the gravest character was done to this unfor­ tunate workman by a fall of earth in consequence of the drive in which he was working not being “ securely protected and made .safe for persons employed therein ” (sec. 23, sub-sec. 8). There was no timbering in the drive. Now, sec. 23 says that certain “ general rules shall, wherever reasonably practicable, be observed in every mine.” Then follow 35 general rules

4 C.L.R.] OF AUSTRALIA.

639

mostly expressed in an impersonal and passive form, such as H. C. of a .

“ (1) An adecpiate amount of ventilation shall be constantly pro­

duced,” &c.; (8) “ Every drive and every excavation of any kind in Lo.sdox and

connection with the working of any mine shall be securely pro- traTian̂ Kx-

PLORATIO.V

tected and made safe for persons employed therein.” But some of

Co. Ltd.

the rules are in another form, and in particular sub-sec. (25), “ Xo

V.

person shall wilfully damage . . . . any fencing . . . . or other

Birc.

appliances or tiling provided in a mine”; and sub-sec. (27), “ The

J.

mining manager shall, once in each week, carefully examine the and if so, what duty imposed on the owner in respect of the recjuirements of sub-sec. (8) of sec. 23 ? There are no words in the Act expressly imposing any such duty on him ; and, if some duty is to be implied, there are no words in the Act defining the extent of that duty, so far as it concerns him. I'here are no words in the Act to the efi'ect that the drive nutsf be securely protected at the peril of the owner, that the owner is to be liable, no matter what precautions he may have taken, if the drive be not in fact made safe. Moreover, if a civil liability results to him, it cannot, so far as this Act is concerned, be

buildings and machinery . . . and shall record in writing . . . .

his opinion as to their condition and safety.” At the end of this

list of general rules is this clause :—“ Every person who contra­

venes or does not comply wdth any of tlie general rules in this

section shall be guilty of an offence against this A ct; and in the

event of any contravention of, or non-compliance with any of the

said general rules by any 'person 'whomsoever being proved, the

mining manager shall also be deemed guilty of an offence against

this Act, unle.ss he proves that he had taken all reasonable means

by publishing, and to the best of his power enforcing, the said

rules to prevent such contravention or non-compliance.” It will

be noticed that this clause relates solely to penal, criminal

liability, in no sense to civil liability. It is true that under sec.

5 any person who is guilty of an offence under the Act is to be

liable to the penalty therein prescribed, and that the award of

the penalty, if awarded in whole or in part to the person injured

or to his representative, “ shall be in addition to the right of

action such person or his personal representative has under this

640 HIGH COURT

[1906.

H. c. OF A. greater tlian his criminal liability, for it has to be based on the

words at the beginning of the final clause of sec. 28—“ Every

London AND person who contravenes or does not comply with any of the

TRALIAN \ \ e.st

Arŝ - rules in this section shall be guilty of cm offence against

PLORATIONCo. Ltd. this Act.” The civil duty must, I apprehend, be co-extensive

V.          with the criminal responsibility ; and if the plaintiff is to suc-

R icci.

___ ceed in this action, he has to show, not that the owner is an

Higgins J.

insurer, but that the owner is criminally responsible, if, as a matter of fact, the drive has not been made safe. Here, again, one maĵ conjecture that the legislature desired to act on the theory that no person, or no company, is entitled to seek profit by mining unless adequate provision be actually made for the safety of human lives and human bodies, and that any mine owner who seeks profit without such provision being made is guilty of an offence for which he is criminally responsible. But if this was the intention, the legislature has unfortunately failed to expre.ss it. Is it necessarily to be implied ? There is consider­ able difficulty in sajdng on whom the duty—this duty with criminal consequences following on breach—is imposed if it be not imposed on the owner. The earlier words of the final clause of sec. 28 involve this proposition, that non-compliance with the general rules is an offence on the part of the person failing to comply. But what is failure to comply ? Who fails to comply if the only evidence is that the drive has not been timbered ? True, the timbering of the drive could not be carried out with­ out the co-operation of the owner, express or implied. The owner must provide the materials, the labour, the money ; and must expressly or impliedly sanction such work where necessary. Anyone doing the work without such sanction would be a tres­ passer. Here all that was known, at the conclusion of the plaintiff’s case, was that the drive ought to have been, but was not, timbered. For all that appeared, the owner may have done all that an owner, as owner, could do. He may have provided the timber, and may have exjjressly instructed the manager to promptly timber every drive. The question is, does the Act necessarily imply that, no matter what precautions the owner may have taken, he is criminally responsible if the drive has not in fact been properly timbered and secured. Looking closely at

4 C.L.K.] OF AUSTRALIA.

641

this Act, and in particular ah sec, 16 which provides that the R- C. of a .

manager “ shall enforce the - ob-servance of all the provisions of

this Act in and upon the mine under his charge,” I cannot find London and

W est Aus-

any such nece.s.sary implication. The manager ha.s not been

TIVAEIAN Ex-

PLOKATIONCo. Ltd.

joined as an alternative defendant; and we are asked to consider

only the obligations of the owner on the evidence as it stood at

V.

R icci.

the close of the plaintiffs case.

It will be noticed that I have

not dealt with the question of common employment. This extra­

Higgins J.

ordinary and anomalous doctrine of common employment, which appears to have been evolved by the perverse ingenuity of the common law lawyers some 70 years ago, is too well established now as to ordinary actions for negligence brought by employes against employers, to be shaken by anything but legi.slative enactment. But I am reluctant to think that the doctrine is to be imported into actions based on an (alleged) absolute statutory duty imposed on tlie employer. I am all tlie more disposed to gratify my reluctance becau.se of the ca.ses of Tkomas w. Quartermain (1); Badilele;/ v. h’arl Granville (2); and Groves v. Lord Wimhorne (3). However, in deference to my learned colleagues, who are much mcK’e familiar than I am with this cla.ss of cases, I make no pro­ nouncement on this point. It is sufficient for me to say that I cannot find, in the facts pi-oved by the plaintiff, any proof of an infringement by the owner of a duty imposed on him by this Act. The Mines Regulation Act and the cognate Acts are certainly at present in a state of lamentable confusion ; and the words of Lord Goke seem applicable—“ Bles.sed be the amending hand.” I quite agree with Mr. Justice Barton in his remarks as to the great hardship which results to the plaintiff from the decision which our duty constrains us to give.

Airpeal allowed', order appealed from dis­ charged', appeal to Full Court dismissed with costs; judgment of Burnside J. re­ stored. Costs already 2̂ (Gd to be refunded

to ap'jullant.

■

Solicitors, for the appellant, Stawell A Cowle.

Solicitors, for the I’espondent, F. S. Harney.

N. G. P.

(1) 18 Q.B.U., 085.(2) 19 Q.B.D., 423.

(3) (1898) 2 Q.B., 402.

VOL. IV.

42