Ryan v Central Norseman Gold Corporation

[1964] HCA 52

HIGH COURT OF AUSTRALIA

Barwick C.J., Kitto, Menzies, Windeyer and Owen JJ.

RYAN v. CENTRAL NORSEMAN GOLD CORPORATION (NO LIABILITY)

(1964) 111 CLR 327

11 September 1964

Statutory Duty

Statutory Duty—Breach—Mines—Failure to provide overhead cover—Regulation declaring general rule to be observed in all mines wherever and so far as in the opinion of the inspector it is reasonably capable of application—Validity—Onus of proof—Mines Regulation Act, 1946-1961 (W.A.), s. 61 (1), (2), (4)*—Mines Regulation Act Regulations (W.A.), regs. 4, 106.**

Decisions

September 11.
The following written judgments were delivered:-
BARWICK C.J. I have had the advantage of reading the judgments to be delivered by Kitto J. and Owen J. I agree with their Honours' reasons for dismissing this appeal. (at p328)

2. The qualification of reg. 106 (1) which is effected by the second limb of reg. 4 makes the applicability of that regulation to the mine in question depend on the opinion of the inspector as to the practicality of such application. This combined operation of regs. 4 and 106 (1) distinguishes this case so far as the onus of proof is concerned from such cases as Duff v. Lake George Mines Pty. Ltd. (1960) SR (NSW) 83 ; (1959) 76 WN 683, and Sherman v. Nymboida Collieries Pty. Ltd. (1962) SR (NSW) 757 ; (1960) 79 WN 786, which were decided in relation to a regulation in which practicality as to the operation as distinct from applicability was to be decided objectively. (at p329)

3. The appeal should be dismissed. (at p329)

KITTO J. I agree in the judgment of Owen J. and I shall add only a few words. (at p329)

2. The principal argument of the appellant appeared to assume that the sole source of power for the making of reg. 4 as a whole is to be found in sub-s. (4) of s. 61. It is true that that sub-section, while enabling any regulations to be declared general rules, confers no power to qualify in any way the operation of a regulation which is so declared. But by making a set of regulations which contains reg. 4 the Executive has achieved at one stroke two quite separate results. One is to exercise the power conferred by sub-s. (1) of s. 61 to make regulations having the force of law in respect of a long list of matters connected with the regulation of mines. The other is to exercise the very different power conferred by sub-s. (4), not to alter in any way the law relating to the regulation of mines, but to select out of the regulations made under sub-s. (1) those which, under the designation "general rules", are to be posted up at or near each mine. The former is a power of subordinate legislation; and by virtue of sub-s. (2) it is a power in the exercise of which regulations may be so made as to apply either generally to all mines in the State, or to mines in a particular district, or to particular mines. (at p329)

3. The first limb of reg. 4 selects the regulations which are to be posted up as the "general rules", and is not, in point of legal effect, a regulation under sub-s. (1) at all. On the other hand the second limb takes effect as an integral part of the regulations. Like reg. 2, which provides definitions to govern the interpretation of all the regulations except where displaced by the context, the second limb provides a qualification to be read into each provision of those regulations which have been selected as "general rules", so as to confine the obligation to observe its provisions to cases in which their application is reasonably practicable. Accordingly reg. 106 (1), read in the context in which it is placed, requires only that, wherever and so far as in the opinion of the inspector (that is to say the local inspector having authority in respect of the particular mine) it is reasonably practicable, a sufficient cover overhead shall be provided on every cage or skip used for lowering or raising persons in a working shaft. Obviously reg. 106 (1) is nonetheless within power under s. 61 (1) because its obligation is limited by the condition that the inspector is of the stated opinion. (at p330)

MENZIES J. Because I consider that reg. 4 of the Mines Regulation Act Regulations is supported by s. 61 (1) and (2) of the Mines Regulation Act as well as by sub-s. (4) of that section I do not accept the appellant's contention that reg. 4 is ultra vires to the extent to which it goes beyond making the provisions of Pts IV to X inclusive and Pt XIII of the Regulations general rules. (at p330)

2. Regulation 106 (1) must, therefore, be read with reg. 4. So read reg. 106 (1) only applies in a mine as to which an inspector has formed the opinion that its application is reasonably practicable. (at p330)

3. Because the plaintiff did not prove that the mine in which he was injured was such a mine he failed to show that there was any breach of reg. 106 (1) on the part of the defendant. (at p330)

4. In my opinion this appeal should be dismissed. (at p330)

WINDEYER J. The words of the Act and Regulations leave me in no doubt that the obligation created by reg. 106 (1) is qualified and controlled by reg. 4 ; and that that regulation is a valid exercise by the Governor-in-Council of the power given by s. 61 of the Act. (at p330)

2. That conclusion is much reinforced by a realization that the Regulations follow a pattern that has long been familiar in enactments concerning safety precautions in mines, and use terms commonly used in such codes. For example the expression "general rules" has had a well-understood meaning in mining law for over a hundred years. And the qualification or limitation of the operation of a general rule by considerations of its practicability in a particular case has existed for over ninety years. Griffith C.J. pointed out in London and West Australian Exploration Co. Ltd. v. Ricci (1906) 4 CLR 617, at p 626, that s. 10 of the English Mines Regulation Act of 1860 began: "The following rules (hereinafter referred to as the general rules) shall be observed in every colliery or coal mine and ironstone mine by the owner and agent thereof". That was repealed in 1872 by the Coal Mines Regulation Act, which by s. 51 provided that "The following rules shall be observed, so far as is reasonably practicable in every mine to which this Act applies". In the same year a similar provision for general rules and with the same qualification was made for metalliferous mines by the Metalliferous Mines Regulation Act, s. 23. This English legislation was the model for enactments in Australia. General rules were made by statute. These might in some case be supplemented by special rules, made under delegated authority, to operate in particular mines. The present Western Australian Act, with which we are concerned, adopts a different method in that it delegates the power to make general rules as well as regulations having a less extensive operation. But I see no reason for thinking that general rules made by the Governor-in-Council under the delegated power may not have their obligation limited by the practicable, just as the general rules made directly by statute had. It was argued that reg. 4 was vitiated because it made the decision whether a rule should be observed depend upon the opinion of an inspector. But the case is not at all like one in which a subordinate law-making authority purports to hand over its functions to another person. Regulation 4 does not make the inspector's opinion the criterion of whether a general rule is to be observed, but of whether it is reasonably practicable of application. If in the inspector's opinion it is reasonably practicable of application - which I take it means reasonably capable of being applied - then it must be observed. A provision that a general rule is to be observed so far as is reasonably practicable, the older form of enactment, commits to a jury or other tribunal of fact the question whether the mine owner or manager took such steps as were reasonably practicable to do what the rule required: Cowie v. Berry Consols Extended Gold Mining Co. (1898) 24 VLR 319 That, although a matter of fact not of law, must be largely a matter of opinion in many cases. No difficulty ordinarily arises in the case of a rule of a prohibitive character. As Day J. said in Wales v. Thomas (1885) 16 QBD 340: "Many of the provisions are negative, and generally speaking they must be practicable, because it is always possible to do nothing" (1885) 16 QBD 340, at p 347 But a positive requirement that something be done or some equipment provided is of a different order. Whether it is reasonably practicable to observe it does not depend upon possibility alone, but upon an assessment of difficulties to be surmounted, including it has been said such matters as time, trouble and expense measured against the magnitude and duration of risk: Edwards v. National Coal Board (1949) 1 KB 704; cf Wales v Thomas (1885) 16 QBD 340 Similar considerations are involved in the question that reg. 4 commits to the opinion of an inspector - that his opinion, and not that of judge or jury, is decisive cannot, I think, affect the validity of the regulation. (at p332)

3. The appellant's next argument was that prima facie reg. 106 (1) was applicable: that a breach of it causing damage could give rise to a civil action: and therefore that if it was not at the date of the accident reasonably practicable of application it was for the defendant in such an action to prove this. The learned trial judge had expressed a contrary view in his judgment. He said "the onus lay upon the plaintiff setting up the statutory duty to prove the inspector held an opinion at the relevant time that defendant could have provided a better cover". The appellant's counsel did not elaborate his argument on this point or support it by authority, perhaps because the point was not taken in the notice of appeal. In the view I have of the matter as a whole it is unnecessary to decide the point for two reasons: First the trial judge considered the respondent had proved that it was in fact not practicable to provide a better cover; and on the evidence it seems that no inspector could have held a different opinion. The existing arrangements were of longstanding and had been seen by inspectors. Secondly, and more important, reg. 4 requires that there be a sufficient cover overhead on every cage and skip: but the injury that the appellant suffered could not, it seems, have been avoided by a larger cover or other protection on the skip. When he was hurt he was riding on the bridle, not standing on a ladder in the skip as he should have been. Thus, as I understand the evidence, there was no causal nexus between the assumed breach of statutory duty and the injury. (at p332)

4. However, as the matter was raised I should say that I am far from satisfied that in an action for damages for breach of one of the general rules the onus is on the plaintiff to establish that in the opinion of an inspector that rule was reasonably practicable of application. There are many decisions and dicta pointing to the opposite conclusion: Butler (or Black) v. Fife Coal Co. Ltd (1912) AC 149, at pp 160, 161; Marshall v. Gotham Co. Ltd. (1954) AC 360, at pp 374, 377; Duff v. Lake George Mines Pty. Ltd. (1960) SR (NSW) 83 ; (1959) 76 WN 683; Sherman v. Nymboida Collieries Pty. Ltd. (1962) SR (NSW) 757, at p 767 ; (1960) 79 WN 786, at pp 792, 793; and see Callaghan v. Fred Kidd &Son (Engineers) Ltd. (1944) 1 KB 560; McCarthy v Coldair Ltd (1951) 2 TLR 1226 The question that reg. 4 commits to the opinion of the inspector differs, at all events in form, from that which arose in those cases, and which fell to be decided by the tribunal of fact. And they exhibit some variety of view as to the principle by which the onus of proving practicability was put upon the defendant. It may be that the differences from the enactments there in question and reg. 4 should lead to a different conclusion in this case. The matter was not fully argued and I therefore say no more than that I am not convinced of this. Rather it seems to me that in a case of this sort, a civil action based on breach of a general rule, it is for the defendant to show that such a rule posted up at the mine is by reason of reg. 4 not in force there because not, in the opinion of the inspector, reasonably practicable of application there. (at p333)

OWEN J. The appellant was injured whilst employed by the respondent as a skipman in its mine. The accident occurred when he was travelling in a skip down an inclined shaft for the purpose of clearing away any rocks or other debris which might obstruct the passage of the skip. While so engaged a large piece of stone, which had become dislodged in some fashion from higher up the shaft, struck him on the head and caused his injuries. He brought an action against the respondent claiming damages and alleging that his injuries were due to the negligence of the defendant or, alternatively, that they were caused by a breach by the respondent of a statutory duty imposed upon it by reg. 106 (1) of the regulations made under the Mines Regulation Act, No. 54 of 1946. (at p333)

2. The learned trial judge found that there had been no negligence on the part of the respondent and no attack is made upon that finding. He found also that there had been no breach by the respondent of any statutory duty and it is against this that the appeal is brought. (at p333)

3. His Honour's findings of fact are not questioned. What is said is that he fell into error in holding that the duty imposed upon the respondent by reg. 106 (1) was not an absolute one but was qualified by the provisions of reg. 4 and that, when the two regulations are read together, no breach of duty was proved. (at p334)

4. Regulation 106 (1), which is in Pt VII of the Regulations, is in the following terms: "A sufficient cover overhead securely hung on hinges shall be provided on every cage and skip used for lowering or raising persons in a working shaft." The shaft in question here was a working shaft, the skip in which the appellant was travelling was used for lowering or raising persons in that shaft and no sufficient overhead cover was provided on it. If, therefore, reg. 106 (1) stood alone the appellant would no doubt be entitled to succeed notwithstanding the fact that, as his Honour found, it was impracticable to provide overhead cover on a skip used in this particular shaft. Regulation 4, however, provides that "The provisions of Parts IV to X, inclusive, and Part XIII of these regulations are hereby declared, pursuant to subsection (4) of section 61 of the Act to be the general rules and shall be observed in all mines wherever and so far as in the opinion of the inspector they are reasonably practicable of application." And there was no evidence that the inspector, that is to say the District Inspector appointed under Div. 2 of the Act, was of opinion that the provision of an overhead cover on the skip with which this case is concerned was reasonably practicable. (at p334)

5. The submission made by counsel for the appellant before the learned trial judge and on the appeal was that reg. 4, in so far as it purports to qualify the otherwise absolute terms of reg. 106 (1), is ultra vires, but the contention cannot be upheld. Section 61 of the Act confers upon the Governor very wide regulation-making powers and it is impossible to say that a regulation which commits to an inspector of mines appointed under the Act the power and authority to determine whether it is reasonably practicable, in the circumstances of a particular case, to provide the safeguard to which Regulation 106 (1) refers is outside the regulation-making power. It is apparent that to read reg. 4 with some of the other regulations to be found in Pts IV to X and Pt XIII may well be difficult and that the scheme adopted by the draftsman of the regulations is open to criticism but this affords no ground for holding reg. 4 to be outside power. There is no difficulty in reading it with reg. 106 (1) and when this is done it becomes clear that no such absolute obligation as that for which counsel for the appellant contended is imposed. (at p334)

6. A further submission was made that the onus lay upon the respondent of establishing that the inspector was of opinion that it was impracticable to provide overhead cover on a skip in the shaft with which the case is concerned. But it was for the appellant to show that there had been a breach by the respondent of its statutory duty and it was for the appellant therefore to establish not merely that no such cover had been provided but also that in the opinion of the inspector it was reasonably practicable to have provided it. (at p335)

7. The appeal must be dismissed with costs. (at p335)

Orders

Appeal dismissed with costs.