Alford v National Coal Board
| Jurisdiction | England & Wales |
| Judge | Lord Normand,Lord Reid,Lord Tucker,Lord Cohen |
| Judgment Date | 06 March 1952 |
| Judgment citation (vLex) | [1952] UKHL J0306-3 |
| Court | House of Lords |
| Date | 06 March 1952 |
| Docket Number | No. 3. |
[1952] UKHL J0306-3
House of Lords
Lord Normand
Lord Reid
Lord Tucker
Lord Cohen
Upon Report from the Appellate Committee, to whom was referred the Cause Alford against National Coal Board, that the Committee had heard Counsel, as well on Wednesday the 16th, as on Thursday the 17th, days of January last, upon the Petition and Appeal of Henry Alford, Miner, residing at 16 The Braes, Dysart, Fife, praying, That the matter of the Interlocutor set forth in the Schedule thereto, namely, an Interlocutor of the Lords of Session in Scotland, of the First Division of the 12th of December 1950, might be reviewed before His Majesty the King, in His Court of Parliament, and that the said Interlocutor might be reversed, varied or altered, or that the Petitioner might have such other relief in the premises as to His Majesty the King, in His Court of Parliament, might seem meet; as also upon the printed Case of the National Coal Board, lodged in answer to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:
It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled, That the said Interlocutor of the 12th day of December 1950, complained of in the said Appeal, be, and the same is hereby Reversed so far as it sustains the Defenders' first plea in law quoad the averments of the breach of Regulation 28: And it is further Ordered, That the said Cause be, and the same is hereby, remitted back to the Court of Session in Scotland with a Direction to take proof before answer quoad the said averments: And it is further Ordered, That the Respondents do pay or cause to be paid to the said Appellant two-thirds of the expenses of the Action in the Court of Session since the date of the closing of the Record: And it is further Ordered, That the expenses incurred in the Action in the Court of Session before the said date be, and the same are hereby, expenses in the Cause: And it is further Ordered, That the Respondents do pay, or cause to be paid, to the said Appellant two-thirds of the Costs incurred by him in respect of the said Appeal to this House, the amount of such last-mentioned Costs to be certified by the Clerk of the Parliaments: And it is also further Ordered, That unless the Costs, certified as aforesaid, shall be paid to the party entitled to the same within one calender month from the date of the certificate thereof, the Court of Session in Scotland, or the Judge acting as Vacation Judge, shall issue such summary process or diligence for the recovery of such Costs as shall be lawful and necessary.
My Lords,
In this appeal the question has to be decided whether the Appellant has relevantly averred breach of statutory duty on the part of his employers, the Respondents.
The facts averred are as follows. The Appellant and another man, employed as ordinary miners, having prepared shot holes in the face of their working place, No. 5 room off No. 2 heading in Thornton Mine, were about to leave their working place to take shelter while the shots were fired. The electric cable for firing the shots had been coupled up to these holes by the authorized shot-firer, Moir, but had not been connected to the firing battery. In the adjoining working place, No. 6 room, in the same heading, shot holes had been bored and stemmed by another miner, named Morgan, Moir had coupled up these also to another electric cable, and he had left the outbye end of this cable close to the outbye end of the cable connected to the holes in No. 5 room. Both outbye cable ends were left by Moir near the same firing battery in the heading. Morgan connected the cable from No. 5 room to the firing battery in the mistaken belief that he was connecting the cable from No. 6 room. He then operated the battery by inserting into the socket meant for the handle a pair of pliers or a similar instrument and so fired the shots in No. 5 room, injuring the Pursuer, who had not reached shelter. It is agreed that Morgan was not an authorized shot-firer.
Three grounds of action are alleged. The first is a breach of paragraph 28 of the General Regulations made under the Coal Mines Act, 1911, providing that, "No person employed in or about the mine shall negligently or wilfully do anything likely to endanger life or limb in the mine, or negligently or wilfully omit to do anything necessary for the safety of the mine or of the persons employed therein." The averments of breach of this regulation will have to be closely examined, but in the meantime it is enough to say briefly that Moir is charged with contravening proper and normal mining practice by failing to lead the outbye end of the cable from No. 5 room to a point between No. 4 and No. 5 rooms in the heading with the result that Morgan was misled into firing the shots in No. 5 instead of in No. 6 room.
The second ground of action is that Morgan infringed sections 2 ( h) and 2 ( i) of the Explosives in Coal Mines Order, 1934, made under the Coal Mines Act, 1934. Section 2 ( h) provides that where shots are fired electrically they shall only be fired by a person authorized in writing by the manager for the purpose, and that the authorized person shall himself couple the cable to the firing apparatus. Section 2 ( i) provides that no unauthorized person shall open or interfere with any electrical shot-firing apparatus.
The third ground of action is that the Defenders were in breach of other provisions of section 2 ( i) which follow immediately after those already quoted. These provisions are:
"Every electrical shot-firing apparatus shall be so constructed and used ( i) that it can only be operated by a removable handle or plug. This handle or plug shall not be placed in position until a shot is about to be fired and shall be removed as soon as a shot has been fired, and it shall at all times whilst the authorized person is on duty be kept in his personal custody."
The Lord Ordinary held that the averments in support of each one of these grounds of action were irrelevant, and his judgment was affirmed by the First Division. The Lord President delivered the only judgment, Lord Carmont and Lord Keith concurred.
My Lords, I have felt no difficulty about the second and third grounds of action, and I shall dispose of them first. The second ground of action is clearly excluded by the decision of this House in M'Aulay v. James Dunlop & Co., Ltd. 1926 S.C. (H.L.) 35. That was a workmen's compensation case in which a miner, not being an authorized shot-firer, coupled a cable to the detonator while the shot-firer was moving the battery handle, which had jammed. The result was an explosion in which a miner was killed. It was necessary to determine whether the miner who coupled the cable to the detonator and who was not an authorized shot-firer was acting within the scope of his employment. It was held that he had overstepped the limits of his employment and therefore that his employers were not answerable for his breach of the regulations, which were in the same terms as those in the instant case. There are in the present case averments that the motive in infringing the regulations was to speed up production. But motive is irrelevant to the question whether Morgan was doing what he was employed to do. I entirely agree with the opinions of the Lord Ordinary and the Lord President on this branch of the case, and need say no more.
On the third ground of action the Lord Ordinary held that, esto there was a breach of the regulations, that breach did not cause the injury suffered by the Appellant. The Lord President held that there was no provision whereby a coal owner is guilty of negligence if he provides shot-firing batteries which are not incapable of being operated by a person who makes an attack on them with a pair of pliers, and further that the fundamental and sole operative cause of the injury suffered by the Appellant was the act of interference by Morgan. My Lords, I think that it is first necessary to construe the regulation and to determine whether there has been a breach. The Appellant's submission was that the regulation requires that the handle should be of special design, like that, for example, of the key of a Yale lock, and that the socket into which it fitted should be designed so that only its special key would fit it. He also submitted that, if that were so, the inference would inevitably arise that the purpose and intention of the regulation was to make the apparatus "foolproof" against the interference of an ordinary miner disposed to trespass beyond the sphere of his employment and to fire the shot by using an instrument like a pair of pliers. On that view of the meaning of the regulation there could be much to be said for the averment that the breach of the regulation caused the accident. But if it was intended to prescribe a key of peculiar design it would be difficult to choose words less apt for that purpose than the words "handle or plug". "Handle" does not suggest any specialty of design, and "plug" suggests a plain blunt piece of wood or other material. The obligation that the shot-firer shall keep the handle or plug in his possession does not imply any specialty of design. All that is prescribed about the form of the handle is that it shall be movable, and the purpose so far may only be to provide against the firing of a shot through an accidental or negligent contact with a fixed handle. The further obligation that the handle shall be kept in the custody of the shot-firer may go further than that, and it may be possible to regard it as a precaution against the act of an unauthorized person who might find the handle lying beside the battery, and an indication that such an act should be kept in view by a shot-firer as a likely cause of danger. But there is no...
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