Sherman v Nymboida Collieries Pty Ltd [1963] HCA 63

High Court of Australia McTiernan, Kitto, Taylor, Windeyer and Owen JJ. Sherman v Nymboida Collieries Pty Ltd [1963] HCA 63

ORDER Appeal dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

Dec. 12 McTiernan, Kitto, Taylor and Owen JJ.

This is an appeal against an order of the Full Court of the Supreme Court (Sugerman, Macfarlan and Nagle JJ.) dismissing a motion for a new trial made by the plaintiff, the appellant before us, in an action brought by her under the Compensation to Relatives Act in which the jury found a verdict in favour of the defendant. In order to understand the submissions that were put to us on the appeal, it is desirable to give an outline of the history of the case. The plaintiff's husband was employed by the defendant as a deputy in a coal mine owned by it and, on 10th October 1956, while making a pre-shift inspection of the mine in the course of his duty, he was killed as the result of an explosion of methane gas and coal dust. The plaintiff's declaration contained two counts. The first of them alleged that the deceased's death had been caused by the negligence of the defendant and the second was based upon allegations of breaches of the statutory duty imposed upon mine owners by Rule 1 (a) of s. 54 of the Coal Mines Regulation Act, 1912-1953 N.S.W.. Particulars of the two counts were given from which it appeared that the breaches of s. 54, Rule 1 (a), which were alleged to have occurred and upon which the second count was based would also be relied upon as evidence of negligence under the first count. The breaches alleged were, in substance, that there has been a failure to provide adequate ventilation in the mine by keeping a ventilation fan operating continuously and that coal dust in dangerous quantities had been allowed to accumulate in the travelling roads and working places of the mine. The allegation relating to coal dust may be disregarded for the purposes of the appeal, since no evidence was given that in this respect there had been any breach of the requirements imposed by the statute.