MINING CASE

Grey River Argus, 4 July 1914, Page 6

MINING CASE

APPEAL ALLOWED.

AN INTERESTING JUDGMENT.

'Air. Justice Sim yesterday the following judgment in the case, of Alexander McGruar (appellant) and Thorn a .; Otto Bishop (respondent). Mi. H. P. Lawry appeared for the appellant and Mr. M Hannan. for respondent. "The appellant in November last was the manager of the Scotia mine at Merrijigs. He was charged in the Warden's Court at Reef ton with the offence of permitting the winding engine in the shaft in the said nune to be used on the 6th November last for riis.'ng- and lowering persons, such •engine not being fitted with an adequate brake as required by -section 254 subsection 26 of the Mining Act, 1908. *The Warden held that the. offence had bt'en proved, and convicted the appellant, and ordered him to nay a fine of ,£2O, with costs. From "this -derisr ion the appellant has brought an appeal on factVand law, and, in accordance with the provisions of section 340 of the Mining Act the case was reheard before me. '•'The respondent is the Inspector of Mines for the Westiand District under the Mining Act. Section 271 of that Act confers on him all the powers of an inspector of 'Machinery under the Inspection of Machinery Act. 1908. The respondent visited the Scotia mine on 6th November last, and by his d»recU^n and in his presence, the brake on 'he winding engine was subjected to several f^sts by the engine driver. On ench of these, tests the brake failed f n hold the engine, and .'+ is dear, I throlc. that on that day the brake on .th-" winrlipor en.f-inp was not an P>de- • •iv\Vp brake. The engine was us^d for Jcfwerinw and raising persons in thr <sh«ift and the annellant there We. 'iv virtue rf «:nbsnrtV)n 47 r<V section 7? 1 /<f tho \fininir Act is eu.'ltv of ''n off< % "'" rt . un^'ss he b:'s nroved that he •iqd f^'^n all reasonable' mean's to r>r*. vft^r, t.b« r^ntrpven^ion or non-compli-ijv^ complained of. "The plant in question had been used for some years in another rains, and \?as then removed. About a year ->^o it was overhauled and erected in the Scotia mine, foT u&e there in connection with prospecting operations. ■ Kefore the plant could be used it had !f o he examined by' an Inspector ' of Machinery under the Act. and certified by him to , be in : proper , and fit working con- ■ dition CMcning Act, section 254, subj section 34-) Mr. Mackenzie an insj vector of machinery under the Inspection of -Machinery' Act, examined the 1 plant on the 14th August last. He 1 tested the brake .himself , and found ( that it worked all right. He there*- • upon told the appellant he could co : on working, as ,he (Mr. (Mackenzie) I was satisfied with the winding- gear j an-J brake. The winding gear was ; u«ed thereafter until the respondent's 1 vis.;t on 6th. November. It was exam iiied and the brake tested by the engine driver each day. and once in each 1 \vu:k the appellant himself made the same examination and test. This was 1 done in compliance with sub-section I 44 of section 234 of the Act. The appellant swears that he did not find anything wrong with the brake, and that the engine driver did not report that anything was- wrong. : with .:t. The reports made by the engine driver in his book from day to day were to the effect, that the pln^t was in a satisfactory condition, _nd\~as working sat*?. ' ffirtorilv. The Respondent himself I visited the mine or| the 10th x>f Octoi ber, aad made some requisitions in.

connection with the winding gear. These did not relate to the brake white does not appear to have .been mentioned on that visVi. After his exami nation on the 6th of November the res pondent forbade the further use of the engine for raising or lowering men ucil the brake was made adequate. C-rtain alterations were then made in connection with it. The brake path .on the drum was turned again. The brake band was re-lined wAth a patient, composition, and a 'screw lever was attached to the fo6t lever of the brake. After these alterations had been made they were inspected on 21st November hv Mr. Newton, an Inspector of Coal "Mines, who had been appointed by thr respondent his delegate ."n the matter Air. Newton had the brake tested, nnci found that it wrvri-pH satisfactorily. The use of the engine./or raising and lowering men was thf'n resumed, -and h.-c- been continued up to the. present itime. On 'he 2^th November Mr. Mackenzie »gair> visited thr mine,.ind Inspected tlv windirur gear «,and he t"i.?n ordered the screw lever to br : disconnected from the foot lever or| the brake. . On the 27th of Mprch the respondent again visited the mine, and had the brake tested. It held on that occasion, and the respondent was satisfied with (its condition. "The question is whether" in these circumstances the appellant has proved that he took all reasonable means to prevent the non-compliance with the Act of whV.h the respondent com plains. Now wo start with the fact -hat the brake as tested and passed by Mr. Mackenzie',! the Inspector of Machinery, so recently as the 14th. of August. ■ In view of this fact, it seems to me that so' long as the brake »v o rked satisf actor ily the appellant was justified in treating- it as an adequate brake for the purposes of the Mining Act. It is not suggested that it had undergone any. material change be tween the 12th of August and the 6th of November, and I cannot find ,any reason for not crediting the appellant's statement that it worked satisfactorily whenever he tested it himself. The engine driver's daily report was to the same effect and this, of course, —o-ukl confirm ,the appellant in his belief V-n the adequacy of the brake. It is suggested, however, because the brake failed so signally when tested' on the 6th of November that it must have failed before, and that the .appellant must have known it was inadequate. lam not satisfied that this argument is sound. The brake in question is a band brake. In the opinion of the experts such a brake is unreliable. It may fail, therefore, 'm one occasion, and hold on another. That it failed one day does not prove that it must have failed on other days. Nor is the fact that it was a -ban-d brake a ground for condemning the appellant. It was passed by Mr. Mackenzie as an adequate brake and that is a complete answer to any objection en that ground. The appellant was not concerned with the question whether or not such .a brake should be used at all. Mr. "»Mackenzie had aul« orised hs use w and all that the appellant had to do was to see that it was kerjt in proper working condition, and did not "fall below its standard of -efficiency when passed by Mr Mnclcnnz'-e The appellant has proved, I think, that he did that. He, therefore, has done all that he could be reasonably required to do in the matter and is not responsible for the non-compliance complained of. The appeal is allowed;, and the Information is dismissed. Each party is left to pay his own costs in this Court and in the Warden's Court. • c lt may be desirable to add that on the question whether a particular brakeis adequate or not. the Act appears to make the opinion of the Inspector con elusive, so far as concerns the future use of the brake. If he condemns it under sub-section 4^ of section 254, then, whether experts agree with him or not the brake has to be forthwith removed or . made nt to his. sat'.sf ac- ' tion. Any ■ Inspector, therefore, who agrees with the emphatic opinion ex presed by Mr. Reid as to the unreliability of band brakes, may forbxl their use in ony mine under his supervision. Whether their use should be allowed in any circumstances where human He is at risk is a question for serious consideration by inspec-i tors. In such cases it is wise to err in the direction of exacting a higher : standard of efficiency than is absolute ly nec&ssary." ____________