oF 1906. WEST AUS PLORATION Co. LTD. v. RICCI. the negligence of himself or his agent" causes any person to be H. C. OF A. injured or killed, is liable. "Agent" here must mean the manager, and "by himself or his agent" must mean the owner, LONDON AND because "agent" is defined in the Act as the owner's repre- TRALIAN EXsentative. Sec. 28, therefore, like the English section, actually does join the owner and agent with the manager in liability. It is the owner who substantially works the mine, and sec. 23 must be taken to refer primarily to the owner, rather than to individual 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. Similarly 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 only safe way. This negligence was imputable to the owner as well as the manager, and both can be punished: Wynne v. Forrester (1). The owner is responsible as well as the manager for neglect of any matter which is within his province, e.g. the non-employment of a certificated engine-driver. [GRIFFITH C.J.-Some duties are incumbent on owners-e.g. safety-catches for cages; but some are not-e.g. 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 ways of the mine. On the repeal of secs. 20 and 27 of the Mines Regulation Act 1895 the worker was left with his full rights, not only at common law and under Employers Liability Act, but also all such as he would have had if sec. 27 had never existed, i e. with the defence of contributory negligence restored to the owner. Where an injury results from breach of a statutory duty incumbent on the owner, "common employment" is no defence to (1) 5 C. P.D., 361. 1906. H. C. OF A. an action either at common law or under the Mines Regulation Act 1895; Paterson v. Wallace (1); Smith v. Baker (2); Brydon LONDON AND V. Stewart (3); Bartonshill Coal Co. v. Reid (4); Roberts and WEST AUS Wallace's Master and Servant, pp. 147-149. TRALIAN Ex PLORATION v. RICCI. [GRIFFITH C.J. referred to Clarke v. Holmes (5). BARTON J. referred to Priestly v. Fowler (6). HIGGINS 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 Art and General Insurance Co. (8). If it may be raised, yet there was no negligence imputable to the defendants, who were only bound to select competent servants and to supply them with proper and adequate materials for the necessary work: Wilson v. Merry (9). [BARTON J. referred to Hedley v. Pinkney & Sons Steamship Co. (10).] In Paterson v. Wallace (11) the jury found personal negligence against the owners. But in the present case the owners cannot be held liable unless they failed to supply proper appliances; 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 reasonably 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 be fastened on him. The owner especially cannot be made quasi-criminally liable to a penalty for the acts or defaults of his agent unless expressly indicated: Wynne v. (1) 1 Macq. H. L. Cas., 748. (5) 31 L.J. Ex., 356; 7 H. & N., 937. (6) 3 M. & W. 1, at pp. 6-7. (7) L.R. 9 C.P., 1, at pp. 7-8. (9) L.R. 1 H.L. (Sc.), 326, at p. 331. (11) 1 Macq. H.L. Cas., 748. Forrester (1); Fletcher v. Dickenson (2)—in both of which cases H. C. OF A. the English Act expressly laid responsibility on the owner. It is clear that the owner was not meant to be liable as an insurer, because he is guilty of an offence in having dangerous ground in his mine only after an inspector has reported it to the manager under the Mines Regulation Amendment Act 1904, (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, responsibilities. 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. 1906. LONDON AND TRALIAN EX PLORATION v. RICCI. Cur. adv. vult. GRIFFITH C.J. This was an action brought by a working 13th November. miner against his employers, claiming damages for an injury sustained by him in the course of his employment. 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 Act; 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 plaintiff for the default of the person to whose negligence the injury was attributable. The provisions relied upon are contained in sec. 23, and the particular duty of which a breach is alleged is that prescribed in Rule 8. H. C. OF A. 1906. WEST AUS PLORATION Co. LTD. RICCI Griffith C.J. Section 23 begins as follows:-"The following general rules shall, wherever reasonably practicable, be observed in every LONDON AND mine." Then follow a number of provisions adapted, and TRALIAN EX. evidently intended, to secure the safety of workmen. Some of them relate to duties which from their nature cannot be performed without the active co-operation of the owner, others to precautions to be taken by workmen and other persons in the mine, while others again relate to the manner of carrying on actual mining operations. Rules 3, 4, 9, 10, 13, 14, 23, 24, relating 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 Rules, 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 Act: 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 contravention 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 1906. LONDON AND TRALIAN Ex Co. LTD. case of Groves v. Lord Wimborne (1), the defence that the H. C. OF A. rule respondeat superior does not apply because the negligence. complained of is that of the plaintiff's fellow servant, which is commonly called the defence of common employment, cannot be set up. On the other hand, it is contended by the appellants that this is not the natural construction of the section, and that, even if it is grammatically open, comparison of its language with that of English Statutes upon which it is modelled, and a consideration of the 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 by the common law, under which in an action by a workman against his employer founded upon negligence the defences of common employment and contributory negligence 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 Limited (2) altered the law by excluding the defence of common employinent in certain specified cases, and in those cases only. The Mines Regulation Act now under consideration, passed in 1895, was the next alteration of the law. I will directly 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. VOL. IV. (2) 3 C. L. R., 543. 41 V. RICCI. Griffith C.J. |