DAJAK V. THIESS BROS. PTY. LTD.

IN THE HIGH COURT OF AUSTRALIA

REASONS FOR JUDGMENT

Judgment delivered at__BRISBANE

on_Tuesday, 2nd June, 1970.

WM, Houston, Gort. Pent, Melb,

DATAK

Ve

THIRSS BROS, PLY. LTD.

Appeal dismissed with costs.

ar

DAJAK

ve

THIESS BROS. PTY. LTD.

BARWICK C.J.

JUDGMENT

DAJAK ve

THIESS BROS. Pry. LED.

The appellant was employed by the respondent as a@ miner on tunnelling work in the Snowy Mountains of New South Wales. He had had experience in Europe as a stonemason in construction work. At the time of receiving the injury for which he seeks damages in this action he was working with others in the employ of the respondent and was engaged in levelling and clearing the floor of a tunnel preparatory to lining it with cement. The work involved the reduction of the level of rock in some places on the floor of the tunnel and was to be carried out with pneumatic drills known as jack picks. But other implements such as sledge hammers and shovels were at hand.

Upon the failure of the jack pick to fracture part of the floor of the tunnel because of the hardness of the rock at that point, the appellant took in hand a sledge hammer and struck the recalcitrant rock. Apparently it shattered somewhat under. the blow. A piece of it struck the appellant in the eye, as a result of which he lost about 10% of the sight of that eye. It seems that this loss of sight is due to the formation of a cataract which at some later stage it may be advisable to remove, a procedure likely to be successful.

The appellant claims that in the performance of the respondent's duty as his employer to use reasonable eare for his 'safety, the respondent, because of the foreseeable

danger in using a sledge hammer to attempt to shatter the rock,

ought to have forbidden him to use the sledge hammer at all or at the least ought 'to have warned him of the danger of ; using it. He also claimed that he should have been supplied