McSORLEY V. THE METROPOLITAN WATER SEWERAGE AND DRAINING BOARD

IN THE HIGH COURT OF AUSTRALIA.

_McSORLEY

THE METROPOLITAN WATER SEWERAGE

REASONS FOR JUDGMENT.

Delivered at on___3h4.

4058 A. H. Perriven, Activa Govr. Prixt.

JUDGMENT.

' ORLEY ve

THE METROPOLITAN WATER SEWERAGE AND DRAINAGE BOARD.

Appeal from an order of the Supreme Court of New South Wales refusing a new trial in an actionfor negligence in which a verdict was given for the defendant by direction of the learned trial Judge.

The action was brought by ens widow for herself and her children for damages for the death of J.J. McSorley, her husband. It was alleged that the death was caused by the negligence of the defendant, his employer. McSorley was engaged in excavating a trench in Cowper Wharf Road on 2nd May 1944, The negligence charged was that-the defendant failed adequately to warn McSorley of the presence of an electric high tension cable in the place where he was working. McSorley put his pick into the cable and was killed.

The learned trial Judge Et che Full Court held that the evidence of the plaintiff showed that the presence of the cable was evident and visible to McSorley before the accident happened, and that thereforegsmyab sence of sufficient warning, could not be regarded as the cause of the injury to McSorley.

As we think that a new trial should be ordered, we consider it inadvisable to examine the evidence in detail. But in our opinion it was open to the jury to regard the evidence relied upon for the conclusion stated as relating only to the condition of the trench after the accident had happened, and as not necessarily showing that the cable or the covering of the cable had been exposed by McSorley in the course of working before the occurrence of the accident.

But the respondent contends that, even if this be the case, there was no evidence fit to go to a jury of insufficient