The statutory defence was not properly taken, as no notice was given of it: See Denny v. Bennett (c); Tyndall v. The Rodney Irrigation and Water Supply Trust (d); and Eagleson and Jacob's County Court Practice, pp. 54, 130. Again, the words "other appliances in sec. 152 of the Mines Act 1897 do not apply at all to a thing like a valve. The evidence shows that the plaintiff, like the defendant's witnesses, did not know that the valve was unsafe. If there is any penalty at all under sec. 152 it is the penalty provided by sec. 155. The defence arising from the maxim "Volenti non fit injuria," is not applicable in cases where the injury has arisen from the breach of a statutory duty on the part of the employer; Baddeley v. Earl Granville (e). Cf. also Yarmouth v. France (f) and Osborne v. The London and NorthWestern Railway Co. (g). In Dublin, Wicklow and Wexford Railway Co. v. Slattery (h) the majority of the House of Lords took the view that the question of contributory negligence was entirely within the province of the jury to decide. Cf. also The Bernina (2) (i). The question is-Was the plaintiff's negligence the approximate or effective cause of the accident? If it was, then he cannot recover. The effective cause here, however, was the motion of the engine, though the putting of the bar in the wheel may have been one of the inducing causes. Sec. 148 (1) gives a cause of action where the plaintiff suffers injury "owing in any way to the negligence of the owner of such mine his agents or servants." Unless the negligence of the person injured is of such a nature as to cut out of consideration altogether the negligence of the defendant, the latter is liable. It was the duty of counsel for the defendant to have drawn the Judge's attention to any (if any) non-direction on his part, and he is not entitled to have a new trial on that ground: Nevill v. Fine Art & General Insurance Co. (k). Cf. also, on this point, Seaton v. Burnand (1); Annual Practice 1905, p. 554; and Ritchie v. The Victorian Railways Commissioner (m). (c) [1896] 44 W.R. 333. JUMBUNNA COAL NO LIABILITY. (h) [1873] 3 App. Cas. 1155. F.C. 1905 TONKIN v. JUMBUNNA COAL MINE " and Counsel also referred to the notes on the words "defect" "keep" in Stroud's Judicial Dictionary, and to Poy v. Darcey (n). Isaacs, K.C. (Commonwealth Attorney-General) and Mitchell, K.C. (with them Mann), for the respondent-The onus is upon the appellant of showing that the order of the learned Judge granting a new trial is wrong. The law entrusts the County Court Judge with the duty of saying whether the findings of the jury on the questions of fact are or are not against the weight of evidence, and he, having found as a fact that they are, then, unless this Court can say that he is palpably and demonstrably wrong in so finding, it will not interfere with his decision. This Court has to apply the same principles to his finding as he himself had to apply to the jury's finding. The law has invested him with a discretion much larger than is practised by this Court, and for these reasons-that he has heard the evidence, has seen the demeanour of the witnesses, and is in a far better position than this Court is to judge of the value and the weight of the evidence. [MADDEN, C.J., referred to Healey v. Bank of New South Wales (0).] There the Court said that it is the duty of an appellant to satisfy the Court of Appeal that the decision of the primary Judge upon a question of fact is demonstrably wrong. The English cases show clearly that an appeal of this kind is an appeal on a question of fact: See How v. London and North-Western Railway Co. (p) and Dovaston v. De La Bertauche (q). This Court has therefore to be satisfied that the determination by the learned Judge that the verdict of the jury was against the evidence is so wrong that he could not possibly have found it as a fact. Cf., also on this point, Pilmer v. No. 1 South Oriental and Glanmire Gold Mining Company Limited (r) and Murdoch v. Durning (s). The practice of this Court is never to review the discretion of a County Court Judge in ordering a new trial in a case where he is dissatisfied with the verdict: See Walker v. Graham (t); Cooper v. Higgins (u); and Sutton v. Henry (v); and in no case will it interfere with his decision unless he is undoubtedly wrong: Black v. Permewan, Wright and Co. Limited (w). The satisfaction or dissatisfaction of the Judge who tried the case with the verdict of the jury is an element which the Court of Appeal will always take into consideration: Cf. Scown v. Haworth (x) and Jones v. Spencer (y), where, though there was a strong body of evidence each way, yet the Court of Appeal ordered a new trial. [MADDEN, C.J., referred to Aitken v. McMeckan (z).] Where no reasons are given by the primary Judge for his decision, the Court of Appeal will assume that he acted correctly: Ewan v. Waddell (a). Sec. 96 of the County Court Act 1890 is taken from the statute 9 & 10 Vict., c. 95, sec. 89, the only difference being the addition of the words "as often as he thinks fit" in the former section. As to the English practice under the latter section see Chitty's Practice (3rd ed.), vol. ii., p. 571. [Cussen referred to Gully v. The Bishop of Exeter (b).] See also the Common Law Procedure Act 1854, sec. 35. Griffith, C.J., and O'Connor, J., in Brown v. Lizars (c) both say that the words " as often as he thinks fit" in sec. 96 are so large that it is impossible to restrict their meaning. This section, dealing as it does with a matter which was before the County Court Judge himself, gives him an almost unlimited discretion, and a power which a Supreme Court Judge would never have if the question of whether there should be a new trial was brought before him. The plaintiff's act in putting the bar in the machine being the "proximate cause " of his injury, he is without remedy: See Pollock on Torts (6th ed.), p. 450. Cf. also Kaye v. Ironstone Hill Lead G.M. Co. (d); Laurenson v. Count Bismarck G.M. Co. (e); and Chapman v. The Victorian Deep Leads Company Limited (f). Sec. 129 of the Mines Act 1897 is outside this case altogether. It lays down a rule of evidence, as F.C. 1905 TONKIN v. JUMBUNNA COAL F.C. 1905 TONKIN V. JUMBUNNA COAL MINE NO LIABILITY. distinguished from sec. 148, which lays down a rule of law. Sec. 129 merely says that "when an accident is proved to have happened it is as good as if the plaintiff had gone into the box and given evidence of negligence." It does not say "there shall be deemed to be negligence." Cf. Brockwell v. The Long Tunnel Extended Gold Mining Company (g) and Eaton v. Caledonian United and New Zealand G.M. Co. Ltd. (h). In Handley v. London, Edinburgh and Glasgow Assurance Company (i) it was held that, although a party who appeals directly against the judgment of a County Court Judge on the ground of misdirection is not entitled to be heard unless he took the objection to the Judge's direction at the time of the trial, it is otherwise if he first applies to the County Court Judge for a new trial on the ground of misdirection, and then upon being refused appeals against such refusal. The direction of the learned Judge on the question of damages was clearly not sufficient. See Ritchie v. The Victorian Railways Commissioner (k); McDade v. Hoskins (1); and Johnston v. Great Western Railway (m). Cussen in reply-There is nothing in the dicta of the learned Judges in Brown v. Lizars (n) to suggest that the County Court Judge has any larger powers in granting a new trial than he has in any other case, but merely that he may exercise the power to do so as often as he pleases. It is sworn that the direction of the learned Judge on the question of damages is not verbatim, so that it cannot be determined exactly what he did say. The direction here was clearly fuller than that in the case of Ritchie v. The Victorian Railways Commissioner (o), as it pointed out that a sum of 25001. would, if invested, give the plaintiff at least 1007. a year, and leave him the capital as well. There are several cases which show that the direction on the question of damages in this case was sufficient. The attention of the Full Court in Ritchie's Case (p) was not called to the cases of Rowley v. London and North-Western Railway Co. (q) and Phillips v. London and South-Western Railway (g) [1904] 29 V.L.R. 636. (k) [1899] 25 V.L.R. 272. (1) [1892] 18 V.L.R. 417. (m) [1904] 2 K.B. 250. (0) 25 V.L.R. 272. (p) 25 V.L.R. 272. (q) [1873] L. R. 8 Exch. 221. - Co. (r), though the reports of the latter case in 4 Q.B.D. 406 and (r) [1879] 5 C.P.D. 280. (s) L.R. 8 Exch. 221, at p. 231. (t) 5 C.P.D. 280. (u) [1904] 2 Q.B. 250, per Vaughan Williams, L.J., at pp. 259, 260; and per Stirling, L.J., at p. 261. (v) F.C. 1905 TONKIN v. JUMBUNNA COAL NO LIABILITY. |