CAHILL V. PEKO MINES NO LIABILITY

IN THE HIGH COURT OF AUSTRALIA».

CAHILL

PEKO MINES NO LIABILITY

REASONS FOR JUDGMENT

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CAHILL Ve

PEKO MINES NO LIABILIZY

Appeal allowed with "costs. Judgment of the Supreme Court of the Northern Territory set aside and in lieu thereof order that judgment be entéred for the plaintiff in the action for the sum of $9,612.50 with costs.

OAHILL Ve

PEKO MINES NO LIABILITY

{

JUDGMENT ~ ; BARWICK C.J.

CAHILL

ve

PEKO MINES NO LIABILITY

The facts of this case including a description of the appellant's place of work and of his duties as a popperman in the respondent's employ are set out in the reasons for judgment prepared in this appeal by my brother Windeyer which I have had the advantage of reading.-

I agree that the learned trial judge misunderstood the evidence in an important aspect, which in his approach to the problem before him, was a vital aspect. He thought that the gradient of the compacted earth and rock constituting the rill up which the appellant, as His Honour found, climbed "earefully", testing his foothold as he went, was some 15% from the horizontal. But the evidence was that the end wall of the footwall of the slope against which the rill haa puilt up was 15% off vertical. There was no evidence as to the gradient of the "rill" expressed in terms of degrees. It could be inferred from the evidence that the appellant by walking some seventeen feet along the slope reached a point were his feet would be some twelve feet higher than the ground level of the draw-point. By stretching his arms to the full whilst standing at that point he could with difficulty place the bundle of explosive in a suitable position in a crevice in the

ore which was jammed in the bell. It was principally because

2.

of this error of fact that the trial judge thought that to attempt to climb the rill, having regard to the material forming its surface, was so extraordinary and such an unreasonable thing to do that the respondent could not be expected to have foreseen the possibility of a workman so behaving. His Honour did regard the risk of material falling. from the bell as an additional reason for the conclusion he thus drew. But there was evidence other than that of the appellant that it was part of the regular duty of the popperman on occasions to work beneath the mouth of the bell, as for example, where it was necessary to place the explosive charge at a point within the reach of a man standing at the draw-point, the ore having jammed at the mouth or not higher than the mouth of the bell, itself about 7 feet from the level of the floor at the draw-point. So that it would not be extraordinary for a workman to take up a position beneath the bell whilst the ore was hung up in it. :