Sherman v Nymboida Collieries Pty Ltd

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 [1] and sets out in considerable detail the nature of the evidence that had been given. Their Honours were of opinion that the trial judge had erred in directing a verdict. They thought that there was evidence which would have justified findings that there had been a failure by the defendant to comply with the requirements of s. 54, Rule 1 (a), relating to the ventilation of the mine; that this had resulted in the accumulation of methane gas in the part of the mine where the deceased was killed; and that the gas had been ignited, with a resulting explosion, by a naked light or a spark possibly caused by some defect in the electrical installations in the mine. It should be added that it is only by coming in contact with a naked flame or spark that methane gas can be ignited.

Their Honours referred also to evidence which had been led for the defendant that, after the explosion and at the place where it occurred, there was found a safety lamp such as the deceased would have been using in making his pre-shift inspection. A safety lamp is made in two sections, the lower section containing the wick and the kerosene which feeds it. To put the lamp together for use, the two sections are screwed together and a padlock is attached which, when locked, prevents them from being unscrewed. When the lamp is screwed together the lighted wick cannot ignite or explode gas which may be present outside the lamp. Gas can, however, enter the upper section and there ignite but without causing an explosion or fire outside the lamp and the purpose of the lamp is to test whether gas in appreciable quantities is present in the mine. When the deceased's body was found, the top section of the lamp was grasped in his left hand. The bottom section, which had been unscrewed, was later discovered a few feet away, as was the padlock which was unlocked and fixed in the open position. Nearby was also found a cigarette lighter which was said to be similar to one owned by the deceased. The screw threads on the lamp were undamaged and were covered with soot. The evidence on these matters would obviously justify the inference that the lamp had, for some reason, become extinguished in the course of the deceased's inspection; that he had unlocked the padlock and taken the two sections apart in order to relight the wick with the cigarette lighter; and that he had thus ignited the methane gas. Their Honours were of opinion that if, on the evidence, that was the only rational conclusion, the plaintiff could not succeed on either count. But, as has been said earlier, they thought that an alternative inference might be drawn that the igniting agent was an electric spark due to a defective electrical system and that the case was therefore one for consideration by the jury. In the course of their judgment, their Honours explained why they considered that the plaintiff must fail if the fact was that the explosion had been caused by the use of the cigarette lighter. In such case, they said, the deceased's conduct "was wholly unreasonable so that the breach of duty by the defendant cannot be said to have contributed to the accident" and "the act of the deceased was the real and effective cause of his death". An application for leave to appeal against the order granting a new trial was made to this Court but was refused.

The second trial was heard by Herron J. (as he then was) and a jury and a verdict was returned in favour of the defendant. Both counts of the declaration were relied upon, the issues of fact contested by the parties and put to the jury in the summing up being those which had been discussed in the reasons of the Full Court. First, was it the fact that the ventilating fan had not been used continuously? On this issue there was a conflict of evidence but the trial proceeded upon the assumption by both parties and by his Honour that, if the fact was found to be that the fan had not been worked continuously and this had resulted in an accumulation of gas at the place where the explosion occurred, it necessarily followed that the defendant had committed a breach of the statutory duty imposed upon it by s. 54, Rule 1 (a). Whether that assumption was correctly made may be debatable, since what the Rule requires is that "an amount of ventilation by air drawn from a pure source shall be continuously produced adequate to dilute and render harmless the inflammable and noxious gases to such an extent that the working places of the workings of the mine and the travelling road to and from those working places shall be in a fit state for working and passing therein ". And it is open to argument that the working places and travelling roads of a mine may none the less be in a fit state for "working and passing therein" although gas is present in sufficient volume to ignite if someone in breach of the rules of safety exposes a naked light. But it is unnecessary to consider this question since the trial proceeded upon the assumption to which reference has been made and without objection by either party. For the same reason it is unnecessary to consider whether a breach of s. 54, Rule 1 (a), gives a person injured thereby a cause of action for damages.

The other issue on the question of liability which was fought at the trial was whether the deceased had himself set off the explosion by using the cigarette lighter to relight the safety lamp. At the close of the plaintiff's case, her counsel had asked the learned trial judge to rule that it was not open to the defendant to call the evidence which pointed to this conclusion on the ground that contributory negligence is not, in New South Wales, a defence to an action for damages for breach of a statutory duty. Since there was also a count based upon negligence, the evidence was clearly relevant and admissible but counsel for the defendant, no doubt having in mind the statement of the Full Court that the action must fail if the deceased had caused the explosion by using the cigarette lighter to light his safety lamp, said that he was not tendering it to prove contributory negligence but would rely upon it to show that the death of the deceased was caused by his own act and not by any breach of duty, statutory or otherwise, on the part of the defendant. In answer to the objection raised by counsel for the plaintiff, Herron J. said that he thought the matter was one for his ruling at the end of the evidence but that - as he understood it - the issue of contributory negligence was not really an issue in the case. Later the evidence in question was tendered and admitted without further objection. His Honour was not asked to give any further ruling on the matter and, in his summing up, told the jury that the plaintiff could not succeed if they found that the deceased had used the lighter to light the safety lamp and thus ignited the gas. No objection was made to this direction.

A verdict having been found in favour of the defendant, the plaintiff again sought an order from the Full Court for a new trial. This was refused and from the order dismissing the new trial motion this appeal is brought.

The question whether the earlier decision of the Full Court that the plaintiff must fail if it was found that the deceased had ignited the gas by using the cigarette lighter does not now arise for consideration. Neither in the Full Court on the second occasion nor before this Court, on the appeal, was it contended that that decision was wrong and no objections were taken at the trial to the way in which the issues were put to the jury by the learned trial judge.

The first submission made in support of the appeal was that the evidence relating to the finding of the safety lamp and the cigarette lighter was inadmissible because it afforded evidence of contributory negligence on the part of the deceased and contributory negligence is not a defence to an action based upon a breach of statutory duty. The first answer to this contention is that the evidence was relevant on the issues raised by the first count and the plea thereto. When this was pointed out to counsel for the appellant, he submitted that the learned trial judge should have required him to elect whether he would rely on the first count or on the second count. But this contention cannot be sustained. It does not lie in the mouth of a plaintiff in an action in which the declaration contains two counts to complain that both of them were allowed to go to the jury. The second answer is that the evidence in question was put to the jury, not to support a defence of contributory negligence, but to show that the ignition of gas was due to the deceased's own conduct and not to any breach of duty on the part of the defendant. This, of course, was the way in which the matter had been dealt with by the Full Court on the first appeal and the learned trial judge followed the same course in his summing up without any objection being taken to his doing so. And, as has been pointed out earlier, no attack on the first decision of the Full Court was made by the appellant on the second appeal to the Full Court or before this Court.

A further ground of appeal argued before us was that certain evidence given by a police officer was wrongly admitted. The witness was a member of the Scientific Investigation Branch of the Force. He said that he had examined the safety lamp shortly after the explosion had occurred and that the screw threads of both the top and bottom sections of the lamp were in good condition. The whole of the lamp, including the threads, was, he said, covered with fine soot. He proceeded to say that he deduced from this that the lamp must have been in two pieces at the time of the explosion. He had also examined the lighter. It was, he said, covered with soot, the wick was burned down to the top of the collar and it contained a flint which sparked when used. He said that his deduction was that the lighter had been in the explosion. His evidence as to the condition of the lamp and of the lighter when he examined them was clearly admissible but the conclusions drawn by him from what he saw were not matters for expert opinion or requiring expert knowledge. They were no more than statements of inferences which would be obvious to any person of normal intelligence. So obvious are they that it is impossible to think that the admission of these two pieces of opinion evidence could have had any influence on the result of the trial.

For these reasons the appeal should be dismissed with costs.

I can see no basis for any different conclusion in this case from that reached by Sugerman and Nagle JJ. in their judgments in the Supreme Court. Mr. Hardwick said what could be said for the appellant. But the verdict of the jury is against her.

The case is, no doubt, in many ways a puzzling one. How did it come about that, just before the explosion, the communication bell from the mine was heard to ring twice? Why was it that an experienced deputy, as the deceased man was, was killed holding the upper part of a safety lamp, which had been unscrewed and thus taken apart, when, according to law, it should have been securely locked (Coal Mines Regulation Act, s. 54, Rule 10 (a) and (b))? Why had he unscrewed it, and perhaps tried, contrary to law, to relight it elsewhere than at an outbye station appointed for the purpose (s. 54, Rule 11)? Why was he apparently in possession of a cigarette lighter in the mine contrary to law (s. 54, Rule 10 (c) and see Schedule 6, par. 46)? The answers to these and other questions will never be known. But the jury could find on the evidence that, either by exposing the flame in the lamp, if it were alight, or by attempting to relight it, if it had gone out, the deceased man set light to methane gas which exploded, the explosion being continued or made greater by the presence of coal-dust. That finding was indeed the only one that fits the known facts. The other hypothesis suggested is that the gas was ignited by a spark from some defective electrical apparatus. But there was really no evidence from which such an inference could be drawn. It was at best a speculative hypothesis. And against it there was what Sugerman J. described as a strong body of evidence placing the centre of the primary explosion of methane gas where the body of the deceased man was found. On top of all that were the facts, of irresistible cogency, of the unscrewed lamp, its padlock removed, and the cigarette lighter. It was against this background that the jury listened to the summing up of the learned trial judge and his direction to them as follows: "Gentlemen, there is the case for your consideration on the question of liability, and if I may just sum up the matters for consideration they are these. Was there a breach of duty committed by the mines management in failing to have the fan run continuously? If you think there was, did that allow this methane gas to collect on 10th October in the mine to a dangerous extent? Then, if you think that that was so you would come to the question of what in your opinion probably caused this explosion. Something had to cause it; some ignition or igniting factor or agent was necessary to cause it; and what caused it? Was it the act of the deceased man himself in igniting the lamp or exposing the flame in 7-Bord right or was it some other agency not connected with Sherman, such as the agency of another human, Benfell, or some apparatus or equipment in the mine that caused it? Those are the matters shortly for your consideration and accordingly as how you answer them your verdict will be on the matter of liability. If you accept the inference which the defendant invites you to accept, namely that it was caused by the deceased's own act, then, as I have told you before, the plaintiff would fail."

No objection was taken to this direction. The plaintiff's counsel had, however, objected earlier to the reception of evidence about the safety lamp and the lighter and their condition. And the main argument for the appellant was that the presence in the mine of gas in explosive quantity and of coal-dust, of themselves, showed there had been a breach of a statutory duty to exhaust gas and keep down dust; and that therefore, contributory negligence not being a defence in New South Wales in an action founded on breach of a statutory duty (Statutory Duties (Contributory Negligence) Act, 1945 N.S.W.), lack of care by the deceased man for his own safety could not prevent his widow succeeding in her action; that any evidence, such as that of the condition of the safety lamp from which an inference could be drawn as to his conduct was thus inadmissible. A short answer is that the declaration contained a count founded on common law negligence, as well as a count based upon breach of a statutory duty; and evidence tending to establish contributory negligence on the part of the deceased was thus admissible. But, in my view, the facts about the lamp and the lighter were as relevant to the cause of action for breach of statutory duty as to that for a negligent breach of a common law duty to provide safe working conditions for the defendant's servants. I shall assume that there was a statutory duty to keep the mine so ventilated as to dilute and render any gas there harmless to persons working or passing in the mine, as distinct from a duty to use due care to do so. I am by no means satisfied that Rule 1 of s. 54, upon its true construction, imposed an obligation as absolute as that for which the appellant contended. Its terms may be contrasted with the regulation in question in Grant v. National Coal Board [1] . But let it be assumed that it required that no explosive gas should be present, the question at the trial was still, What caused the explosion? And that became, Was it the conduct of the deceased man? And that this was the main fact in issue was accepted by both sides.

Breach of a statutory duty to provide means for ensuring the safety of workmen must, contributory negligence having been excluded by statute as a defence, be regarded as a duty that is owed to the careless just as much as to the careful. All safety requirements enacted by statute are obviously meant to meet conditions in which, if they were not insisted upon, the careless, the inattentive, the tired, the clumsy and unskilful, and any workers ready to take risks, might come to harm. If a law of that sort gives a civil right of action to persons injured in consequence of its breach, then that right is available to the careless and the unskilful as well as to the careful and skilled. Moreover, even when contributory negligence is a defence, it is not every heedless act that amounts to contributory negligence disentitling a plaintiff to succeed: Davies v. Adelaide Chemical and Fertilizer Co. Ltd. [1] ; Caswell v. Powell Duffryn Associated Collieries Ltd. [2] . Nevertheless, when an accident occurs and harm ensues, the question is always, What, in a legal sense, caused the harm? That must be answered if responsibility is to be fixed upon some person. I stated at some length my views on the topic of causation as a legal concept in The National Insurance Co. of New Zealand Ltd. v. Espagne [3] . In the present case the immediate cause of the explosion - in the proper sense of the word "immediate" and on any ordinary meaning of the word "cause" - was the ignition of the gas. And I agree that it, and not the antecedent condition of the mine due to neglect to provide proper ventilation, if there were such a neglect, was, for the purposes of determining legal responsibility, the cause of the death: see Stapley v. Gypsum Mines Ltd. [4] . There are no simple criteria of universal application by which that question can be resolved. Foreseeability and the ordinary man's conceptions of culpability enter into a determination of it. One consideration, however, is that in this case the opening of the safety lamp was not merely a careless act. It was an act positively prohibited by law. This is not a decisive consideration: see the judgment of Dixon and McTiernan JJ. in Henwood v. Municipal Tramways Trust (S.A.) [5] , and see National Coal Board v. England [6] . But it is, I consider, a most relevant consideration when the duty said to have been neglected is part of a complex of duties imposed by statute on different persons, which are meant cumulatively to ensure the safety of persons working in a mine or factory. Then, it seems to me, a question arises whether a person who was himself required by the statute to perform part of that complex of duties can, when an accident occurs as the immediate result of his own default in carrying out his duty, attribute the consequences that befall him to the antecedent default of another. The question in such a case is not simply one of contributory negligence on the part of someone to whom a duty of care was owed.

1. (1946) 74 C.L.R. 541. 2. [1940] A.C. 152. 3. (1961) 105 C.L.R. 569, at pp. 590-595. 4. [1953] A.C. 663. 5. (1938) 60 C.L.R. 438. 6. [1954] A.C. 404.

The facts of the present case bring the question into sharp relief. The deceased man was a deputy. As such, he himself had statutory duties for the ensuring of safe working conditions in the mine. Schedule 6 of the Act makes it the duty of a deputy to examine the mine before the commencement of each shift. It was to perform this task that he had entered the mine. The object of the examination was, among other things, to see whether gas was present. A deputy also has duties (under pars. 42 and 43 of Schedule 6) in relation to the safety lamps. It seems that a deputy who, in the course of making an examination to see whether gas be present, detonated gas, by striking a light or exposing the flame of his safety lamp, could not maintain an action for breach by his employer of a statutory duty to ventilate the mine. And the representative of a deputy who was killed in this way cannot, I think, in an action under Lord Campbell's Act, ask the tribunal of fact to disregard the conduct of the deceased man. He had, under the statute, a complementary statutory duty to see whether the ventilation, which it was his employer's duty to provide, was in fact sufficient to dispel gas from the mine to an extent to make it safe for men to work there. It is not contributory negligence that precludes him, or his representative, if he be killed, from recovering. It is that, in the circumstances, the accident was not, in the eye of the law, the result of his employer's failure to perform a statutory duty but of his own separate and independent act. The validity of the distinction may be debatable. But it has been said that, in law, questions of cause and consequence are to be resolved according to "the ordinary common sense of the matter" - and in order to allot responsibility, not to trace back from ultimate consequence to first cause. In Norris v. William Moss & Sons Ltd. [1] , Vaisey J. used words which I adopt as appropriate here: "It is not, I think, admissible to construct chains of causation in a case such as this where a single cause - simple, obvious and amply sufficient to account for what happened - is to be found in the inexcusably careless behaviour of the workman himself" [2] . This may sound harsh. But, so far as the facts of this case can ever be known, it is unfortunately applicable.

1. [1954] 1 All E.R. 324. 2. [1954] 1 All E.R., at pp. 327, 328.

As to the objection to the evidence of the police constable. I think that the conclusions he drew from the condition of the lamp and the lighter as he described them were, strictly, not admissible. The proper inferences from the facts he stated were for the jury. But what he said was really only explanatory of his observations on the state of the articles he examined. He was not stating his opinion on a matter of opinion, so much as drawing attention to a simple conclusion of fact to which the facts to which he deposed seemed inevitably to lead. What he said got its force not as the opinion of an expert, but because it was an inference that anyone might draw from what he described. If he entered somewhat upon the province of the jury, that, in the circumstances, would not be a ground for a new trial. I agree with what Sugerman J. said on this aspect of the case.