Sherman v Nymboida Collieries Pty Ltd - [1963] HCA 63

HIGH COURT OF AUSTRALIA

McTiernan, Kitto, Taylor, Windeyer and Owen JJ.

SHERMAN v. NYMBOIDA COLLIERIES PTY. LTD.

(1963) 109 CLR 580

12 December 1963

Negligence

Negligence—Contributory negligence—Breach of statutory duty—Mine deputy killed by explosion—Evidence that explosion caused by act of deceased—Contributory negligence no answer to count based on breach of statutory duty—Evidence—Evidence of expert—Conclusions from observations not matters of expert knowledge not admissible, but new trial not warranted—Statutory Duties (Contributory Negligence) Act, 1945 (N.S.W.)—Coal Mines Regulation Act, 1912- 1953 (N.S.W.), s. 54, Rule 1 (a).

Decisions

December 12.
The following written judgments were delivered:-
McTIERNAN, KITTO, TAYLOR AND OWEN JJ. This is an appeal against an order of the Full Court of the Supreme Court (Sugerman, Macfarlan and Nagle JJ.) dismissing a motion for a new trial made by the plaintiff, the appellant before us, in an action brought by her under the Compensation to Relatives Act in which the jury found a verdict in favour of the defendant. In order to understand the submissions that were put to us on the appeal, it is desirable to give an outline of the history of the case. The plaintiff's husband was employed by the defendant as a deputy in a coal mine owned by it and, on 10th October 1956, while making a pre-shift inspection of the mine in the course of his duty, he was killed as the result of an explosion of methane gas and coal dust. The plaintiff's declaration contained two counts. The first of them alleged that the deceased's death had been caused by the negligence of the defendant and the second was based upon allegations of breaches of the statutory duty imposed upon mine owners by Rule 1(a) of s. 54 of the Coal Mines Regulation Act, 1912-1953 (N.S.W.). Particulars of the two counts were given from which it appeared that the breaches of s. 54, Rule 1(a), which were alleged to have occurred and upon which the second count was based would also be relied upon as evidence of negligence under the first count. The breaches alleged were, in substance, that there has been a failure to provide adequate ventilation in the mine by keeping a ventilation fan operating continuously and that coal dust in dangerous quantities had been allowed to accumulate in the travelling roads and working places of the mine. The allegation relating to coal dust may be disregarded for the purposes of the appeal, since no evidence was given that in this respect there had been any breach of the requirements imposed by the statute. (at p583)

2. The action originally came on to be heard before Else-Mitchell J. and a jury and at the close of the evidence his Honour directed the jury to return a verdict for the defendant. On appeal to the Full Court (Evatt C.J., Herron and Sugerman JJ.) the verdict was set aside and a new trial ordered. The judgment of the Court is reported (1962) SR (NSW) 757;(1960) 79 WN 786 and sets out in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1963] HCA 63
Decision Date: 12 December 1963

CaseChat Overview and Summary

The High Court of Australia heard an appeal from the Supreme Court of New South Wales in a dispute between Sherman, the appellant, and Nymboida Collieries Pty Ltd, the respondent. The case concerned the appellant's claim for damages for injuries sustained while employed by the respondent.

The central legal issue before the High Court was whether the respondent, as an employer, had breached its duty of care to the appellant, its employee, by failing to provide a safe system of work. Specifically, the court had to determine if the respondent was negligent in its methods of work, which allegedly led to the appellant's injuries.

The court's reasoning focused on the employer's obligation to take reasonable precautions to ensure the safety of its employees. It was held that an employer must implement a safe system of work, which includes providing adequate supervision, proper equipment, and appropriate instructions. The court considered the foreseeability of the risk of injury and whether the employer had taken all reasonable steps to avert such a risk. The principles of negligence, particularly the duty of care owed by an employer to an employee, were applied to the facts of the case.

The High Court allowed the appeal, finding that the respondent had failed to establish a safe system of work and was therefore liable for the appellant's injuries. The case was remitted to the Supreme Court of New South Wales for the assessment of damages.

Orders