London & West Australian Exploration Co Ltd v Ricci [1906] HCA 72; (1906) 4 CLR 617 (13 November 1906)

HIGH COURT OF AUSTRALIA

London and West Australian Exploration Co. Ltd. Defendants, Appellants; and Alberto Ricci Plaintiff, Respondent.

H C of A

On appeal from the Supreme Court of Western Australia.

13 November 1906

Griffith C.J., Barton and Higgins JJ.

Pilkington K.C. and Stawell, for the appellant company.

Villeneuve Smith (F. Harney with him), for the respondent.

Pilkington K.C. in reply.

13th November

Griffith C.J.

This was an action brought by a working 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.

Section 23 begins as follows:—"The following general rules shall, wherever reasonably practicable, be observed in every mine." Then follow a number of provisions adapted, and 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 case of Groves v. Lord Wimborne[1], the defence that the 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 employment 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.

The first English Statute in which a section in the form of sec. 23 of the Mines Regulation Act is to be found is the Act 23 & 24 Vict. c. 151, passed in 1860. Sec. 10 of that Act began as follows:—"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." Then followed 15 rules. Sec. 22 imposed a penalty not exceeding £20 for any 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 Coal 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 followed 31 rules, and the section concluded with words identical with the concluding paragraph of sec. 23 now under consideration, 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 Coal Mines Regulation 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 differences 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 Liability 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 Compensation 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 Compensation 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 these years have lain for a mere breach of the statutory rules in which to anyone to bring it, and still more strange that the legislature should, when by the Employers Liability Act they abolished the defence of common employment in certain cases, have so carefully restricted the newly conferred rights, as they did in the case of both the later Acts. This argument is, however, of course not conclusive.

The law of Western Australia and the history of English legislation being then as I have recited, let us consider what the legislature did. In sec. 23 they omitted from the concluding paragraph the words "owner and agent." It was at first contended before us that, notwithstanding the omission of these words, the owner is liable under the first member of the enactment 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 provision 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 passed, and not to an isolated section, and the fact that other provisions have since been repealed cannot affect the bearing which 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-observance 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 killed, may recover, in any Court of competent jurisdiction, from the owner of such mine compensation by way of damages as for a tort committed by such owner. Provided that, in estimating the damages and deciding the question of costs, due regard shall be had to the extent (if any) to which the person injured or killed contributed, by any negligence on his own part, to the injury or death." Sec. 28 is as follows:—"Any person who contravenes or 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 this Act." It was also enacted, by sec. 20, that the occurrence of an accident in or on a mine should be primâ facie evidence of negligence 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 the 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 the 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 merely 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 Workers Compensation Act, which they did, but at the 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 primâ facie improbable. Contemporanea 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 legislation, much of which was unnecessary if such a right existed, is against this construction. Is there then any other which is open upon the language, and which will give effect to the intention of the legislature so far as they have expressed it? I think there is.

The rule to be applied in determining whether, when a Statute imposes a penalty for a breach of a statutory obligation first created by it, a civil action will lie to recover damages occasioned by the breach was laid down by Lord Cairns L.C. in the Court of Appeal in the case of Atkinson v. Newcastle Waterworks Co.[3]. 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 impossible to suppose that the English legislature, when they passed the various enactments on which sec. 23 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 personally 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 breach of his common law obligation to provide reasonably fit appliances. But 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 for the negligence of his agent, or with the defence of common employment. With that subject the legislature had expressly dealt in the previous year (1894); and it is plain that in 1895 they either did not apply their minds to the question whether sec. 23 would of itself exclude such a defence, or that they thought that it would not, and therefore enacted sec. 27. The same considerations apply to the construction of sec. 28, which I 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 Wimborne[4], and that if the only evidence of negligence against him is a failure by the plaintiff's 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 plaintiff's 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 defendants would have been liable under the Employers Liability 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.

Barton 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 on (1) negligence at common law; (2) the provisions of the Mines Regulation Act 1895 and its amendments; (3) the provisions of the Employers Liability Act 1894. The plaintiff expressly abandoned the claims at common law and that under the Employers Liability Act, and at the trial he based his claim upon one cause of action only, for, as the learned Judge who tried the case has stated, "he claims that he was injured by reason of the defendant company having failed to comply with the duty which he alleges is cast upon it by the provisions of the Mines Regulation Act 1895 and its amendments." He says that the Mines Regulation Act imposes a duty on the defendant company as owner of the mine, and that as his injury 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 was in doubt whether to sue the defendant company or another, for he sued both alternatively, 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.

The 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 plaintiff had worked for some two hours longer when, the drills proving insufficient to support the overhanging material, it came down on him and seriously injured him. There was evidence that the stope was unsafe because of overhanging 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 company. 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.

It would be idle to repeat the history which has been given of the legislation in England and in this State on the subject of the liability of employers, the regulation of mines, and compensation to workers. But it is well to bear in mind that here the Employers Liability Act was passed in 1894, the Mines Regulation Act in 1895, the Mines Regulation Act Amendment Act in 1899, and the Workers Compensation Act in 1902.

Now, sec. 27 of the Mines Regulation Act, as amended by the Act of 1899, sec. 13, had while it existed two, perhaps three, very important effects. Any employé in a mine injured by the negligence 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 compensation 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 representative. 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, whichever 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 injuria 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 Liability Act. At the same time there was not, as there is in the last-named Act (sec. 6) any accompanying limitation 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 the following differences in the law we are discussing. By sec. 21 it repealed secs. 20 and 27 of the Mines Regulation Act 1895 and secs. 13 and 14 of the Mines Regulation Act Amendment Act 1899—that is, the whole code, so to speak, of the Mines Regulations Acts relating to civil remedies. Had it stopped there the miner would have retained only the remedies he had gained under the Employers Liability Act 1894, in addition to his original remedy by action for negligence at common law, which latter probably 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 compensation inter alios to a worker employed on or in any mine, or in case of death resulting from the injury, to those 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 caused to a worker" (sec. 6). That is to say, in proceedings under the Act of 1902, the employer can no longer, whatever the facts may be, set up either that the worker has contributed to his own injury; or that he has caused the injury solely by his own negligence (unless he has caused it by serious and wilful misconduct); or that the negligence was that of a fellow-workman, and not of the master; or that the worker has voluntarily undertaken a dangerous employment, with full knowledge of and readiness to undergo the attendant risks. But most important of all, he cannot set up that either he or any one for whose conduct he is responsible has not been guilty of any negligence at all. All these pre-existing defences are now swept away 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 is (sec. 17), and he has a first charge for his compensation or damages 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 employing company commences to be wound up (sec. 14). Further, the Act is prevented from affecting any civil liability of the employer independently of its provisions, where the injury is caused by the negligence of the employer or of anyone for whose act or default the employer is (of course, civilly) responsible (sec. 7 (1)); and the worker may claim compensation under the Act or take any other proceedings open to him independently of the Act (sec. 7 (2)), though this provision, it need scarcely be said, does not revive any liability of the employer under any 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 Liability Act, and in fact expressly 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 primâ 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 entirely new provision 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 advantages. 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 Liability 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 respect of their civil remedies. And this, in my opinion, the Act of 1902 carefully does.

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 Wimborne[5], and that it is not affected by the repeal of sec. 27 of that Act. I am of opinion that this case is not governed by Groves v. Lord Wimborne[6], and that the history and meaning of the legislation of 1895 to 1902 shows that actions of the class of that case are not maintainable in these circumstances. Before that decision could apply a breach of the statutory rule on which this case is founded (sec. 23, sub-sec. 8) must be brought home to the owner. I am of opinion that there is nothing in the Mines Regulation Acts to make the owner personally responsible for breach of any of the rules unless he has been guilty personally of an active breach or of personal failure in the performance of that rule. In this case, "wherever reasonably practicable, ... (8) Every drive and every excavation of any kind in connection with the 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 constantly on or about the mine, as he must be in order to maintain the supervision which the Act requires. 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, the person in immediate charge of the mining operations. To conform to the many requirements of the Act he must have implied authority to purchase such material and engage such labour as from time to time is necessary for the daily progress 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 such 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 which 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 supervise. 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 mine, or to prevent compliance with such a rule, the question would then, but not till then, arise as to his personal liability under sec. 23.

So much for personal contravention or default under sec. 23. In Groves v. Lord Wimborne[7], on failure to erect or maintain the necessary fencing, the factory in which the section (Factory and Workshop Act 1878, sec. 5), was contravened was under that section to be deemed not to be kept in conformity with the Act, and other sections stated clearly that the person responsible in that event was the "occupier" who irrespectively of his liability to fines was held in the case cited to be thus made personally liable to an action at the suit of the person injured. There is no resemblance between that case and the present one, and it does not go to show a personal liability of the owner in this case for what has occurred. But further I think that actions of the class of Groves v. Lord Wimborne[8] 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 unrepealed portions: Attorney-General v. Lamplough[9]. There Bramwell L.J., said:—"Then it is argued that you cannot look at the repealed portion of the Act of Parliament to see what is 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[10]:—"Where in the Statute which is to be repealed there are separate and distinct enactments, and the repealing Statute simply repeals one of these enactments, it seems impossible to construe the meaning of the repealing Statute to be that it thereby gives a different meaning to the enactments with which it does not assume to deal at all." Taking then sec. 23 and other provisions as to offences against 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, in fact a practically new civil remedy to the miner in respect 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 injury, such as that of Groves v. Lord Wimborne[11], were sanctioned by sec. 23 and similar provisions apart from sec. 27? In my opinion that is clear, apart from anything 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 Regulation Act that was not actionable before the repeal. Coming now to the repealing Act, which is 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 employer independently of the Act where the injury is caused by the negligence of the employer or of some person for whose act or default the employer is responsible." That, however, does not alter the fact that the Act takes away, in exchange for the new rights given, the action against the owner under the repealed sec. 27 for, 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 Regulation Act 1895 for mere breach of statutory duty being abolished, there remain the following remedies:—(1) Action under the Employers Liability Act; (2) Action under the Workers Compensation Act; (3) Action for negligence, including breach or default in the performance of statutory duty, but only where such breach or default is negligent. The action as now before us is not framed under any of these classes. I may say that had it come under the third, it must have failed; for even assuming that there was evidence of negligence, yet such negligence would have been that of a fellow-servant, and the defence of common employment would have been fatal to the claim. In my opinion, therefore, the action fails, and this appeal ought to be allowed, the order appealed from discharged, and the judgment of Burnside J. for the defendant company restored.

Higgins 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 question 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 employé owing to negligence or to the non-observance in the mine of any of the provisions 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 negligence or non-observance of the provisions of the Mines Regulation Act or not; 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 primâ 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 must find something in the Mines Regulation Act, as it now exists with its amendments, imposing a duty on the owner which has not been fulfilled. In the present case, an injury of the gravest character was done to this unfortunate 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 mostly expressed in an impersonal and passive form, such as "(1) An adequate amount of ventilation shall be constantly produced," &c.; (8) "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." But some of the rules are in another form, and in particular sub-sec. (25), "No person shall wilfully damage ... any fencing ... or other appliances or thing provided in a mine"; and sub-sec. (27), "The mining manager shall, once in each week, carefully examine the 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 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 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 Act or otherwise." But the question still remains, is there any, and if so, what duty imposed on the owner in respect of the requirements 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. There are no words in the Act to the effect that the drive must 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, begreater than his criminal liability, for it has to be based on the words at the beginning of the final clause of sec. 23—"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." The civil duty must, I apprehend, be co-extensive with the criminal responsibility; and if the plaintiff is to succeed in this action, he has to show, not that the owner is an insurer, but that the owner is criminally responsible, if, as a matter of fact, the drive has not been made safe. Here, again, one may 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 express it. Is it necessarily to be implied? There is considerable difficulty in saying 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. 23 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 without 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 trespasser. 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 expressly 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 this Act, and in particular at sec. 16 which provides that the manager "shall enforce the observance of all the provisions of this Act in and upon the mine under his charge," I cannot find any such necessary implication. The manager has not been joined as an alternative defendant; and we are asked to consider only the obligations of the owner on the evidence as it stood at the close of the plaintiff's case. It will be noticed that I have not dealt with the question of common employment. This extraordinary 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 legislative 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 the employer. I am all the more disposed to gratify my reluctance because of the cases of Thomas v. Quartermain[12]; Baddeley v. Earl Granville[13]; and Groves v. Lord Wimborne[14]. However, in deference to my learned colleagues, who are much more familiar than I am with this class of cases, I make no pronouncement on this point. It is sufficient for me to say that I cannot find, in the facts proved 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 Coke seem applicable—"Blessed 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.

Appeal allowed; order appealed from discharged; appeal to Full Court dismissed with costs; judgment of Burnside J. restored. Costs already paid to be refunded to appellant.

Solicitors, for the appellant, Stawell & Cowle.

Solicitors, for the respondent, F. S. Harney.

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

[2] [1905] HCA 49; 3 C.L.R., 543.

[3] 2 Ex. D., 441.

[4] (1898) 2 Q.B., 402.

[5] (1898) 2 Q.B., 402.

[6] (1898) 2 Q.B., 402.

[7] (1898) 2 Q.B., 402.

[8] (1898) 2 Q.B., 402.

[9] 3 Ex. D., 214, at p. 227.

[10] 3 Ex. D., 214, at p. 231.

[11] (1898) 2 Q.B., 402.

[12] 18 Q.B.D., 685.

[13] ???

[14] ???