Brown v National Coal Board
| Jurisdiction | England & Wales |
| Judge | Viscount Simonds,Lord Reid,Lord Radcliffe,Lord Denning |
| Judgment Date | 19 December 1961 |
| Judgment citation (vLex) | [1961] UKHL J1219-1 |
| Court | House of Lords |
[1961] UKHL J1219-1
House of Lords
Viscount Simonds
Lord Reid
Lord Radcliffe
Lord Denning
Upon Report from the Appellate Committee, to whom was referred the Cause Brown against National Coal Board, that the Committee had heard Counsel, as well on Thursday the 9th, as on Monday the 13th and Tuesday the 14th. days of November last, upon the Petition and Appeal of Frank Hall Brown, of 7 Arcadia Terrace, Blyth, in the County of Northumberland, praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of Her Majesty's Court of Appeal of the 14th of October 1960. might be reviewed before Her Majesty the Queen, in Her Court of Parliament, and that the said Order might be reversed, varied or altered, or that the Petitioner might have such other relief in the premises as to Her Majesty the Queen, in Her Court of Parliament, might seem meet; as also upon the 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 Order of Her Majesty's Court of Appeal, of the 14th day of October 1960, complained of in the said Appeal be and the same is hereby. Affirmed, and that the said Petition and Appeal be, and the same is hereby, dismissed this House: And it is further Ordered, That the Appellant do pay, or cause to be paid, to the said Respondents the Costs incurred by them in respect of the said Appeal, the amount thereof to be certified by the Clerk of the Parliaments.
My Lords,
In my opinion this appeal cannot be sustained.
I have had the opportunity of reading the Opinions which my noble and learned friends. Lord Reid and Lord Radcliffe, are about to deliver, and agreeing as I do with their reasoning and conclusion I think it unnecessary to add anything.
The appeal will be dismissed with costs.
My Lords,
The Appellant sustained injury caused by a fall from the roof of a road in the coal mine in which he was employed. He cannot now maintain that this was caused by any fault or negligence for which the Respondents can be held liable to him. His case is that the bare fact that the fall occurred is sufficient to show that the manager was in breach of his duty under section 48 of The Mines and Quarries Act, 1954, to keep the road secure. He maintains that that section imposes an absolute duty on the manager. This section replaces section 49 of the Coal Mines Act, 1911, which required that "the roof and sides of every travelling road and working place shall be made secure". I shall assume in the Appellant's favour that this was an absolute obligation.
It was argued that Parliament cannot have intended to weaken the protection formerly given to workers in a dangerous industry. On the other hand it was said there is a strong presumption that when Parliament alters phraseology the meaning of which is well settled it intends to alter the law. In the circumstances here I cannot attach much weight to either of these general arguments. Much of the 1911 Act has been expanded and completely redrafted. I think that it must have been intended that the total effect of the new safety provisions should afford even greater protection against all dangers including danger from insecure roofs and sides of roads. But the primary purpose of these provisions is to prevent accidents rather than to deal with compensation to those who receive injuries, and it does not at all follow that the effect of the new provisions will be to leave untouched all the old methods of obtaining compensation or damages. So I must examine the new section with at most an inclination to seek a meaning which would preserve the old remedies.
Section 48 of the 1954 Act is in these terms:
"4. (1) It shall be the duty of the manager of every mine to take, with respect to every road and working place in the mine, such steps by way of controlling movement of the strata in the mine and supporting the roof and sides of the road or working place as may be necessary for keeping the road or working place secure…
(2) It shall be the duty of the manager of every mine to take such steps as may be necessary for securing that he is at all material times in possession of all information relevant for determining the nature and extent of any steps which it is requisite for him to take in order to discharge efficiently the duty imposed on him by the foregoing "subsection".
The first and most obvious change is that, in place of the old impersonal absolute obligations, specified duties are now imposed on the manager personally. This may well promote safety by preventing division of responsibility and setting out in clear form what managers must do. Undoubtedly, if a manager fails to do anything which a careful and skilled manager in his shoes would have done, he will be in breach of his duty and his employers will be liable for any damage caused thereby. But the question in this case is whether the section goes further and imposes on him a duty to do things which later investigation may show were necessary but which neither he nor anyone else could know at the time were necessary—whether it requires him to do the impossible. I do not think that such a construction would occur to anyone were it not for the fact that there was an absolute obligation under the old section. But I must examine the new provisions to see whether it is reasonable, or indeed possible, to interpret them in that way. If they cannot be construed in that way then it appears to me that the only possible alternative is to hold that they impose on the manager a duty to exercise care and skill—the highest degree of care and skill that a competent manager could exercise. And if that is their true meaning then this appeal cannot succeed.
Logically subsection (2) comes first: it requires the manager to obtain all the information necessary to enable him to discharge his duties under subsection (1). It is hardly possible to suppose that subsection (2) imposes an absolute duty. The manager is to take "such steps as may be necessary" for securing that he has all relevant information. Investigation after an accident may disclose information which it was physically, impossible for him to obtain earlier, but which, if it could have been known earlier, would have enabled him to prevent the accident. I cannot read subsection (2) as laying on him the impossible duty of obtaining that information before the accident: "Such steps as may be necessary" must at least be limited to such steps as it is possible to take.
Then, turning to subsection (1), I find the same phrase "such steps as may be necessary". The argument for the Appellant is that, if investigation after an accident shows that there were steps which could have been taken to prevent it, then it does not matter that it was impossible before the accident to obtain the information which would have shown the necessity for taking those steps. Indeed, the Appellant's argument goes further: it assumes that, no matter what may be the nature of the accident, there must always be some steps of the kind required by the subsection (i.e. by way of controlling movement of the strata or supporting the roof and sides) which could have been taken, and would, if taken, have kept the place secure. It is only on that basis that it would be possible to interpret this duty as an absolute obligation, for the essence of an absolute obligation is that the bare fact that a road or working place has not been kept secure proves a breach of duty.
Then I think that further light on the meaning of subsection (1) can be got from subsection (2). It assumes that if he carries out his duties under it, the manager will be in possession of all information relevant for determining the nature and extent of the steps which subsection (1) requires him to take. If that is right then the manager cannot be in breach of his duty under subsection (1) if he has obtained all the information which subsection (2) requires him to obtain and has acted in light of that information with all the care and skill which a manager ought to bring to bear. So again the conclusion is that the manager is not under any absolute duty.
I have had an opportunity of reading the speech about to be delivered by my noble and learned friend, Lord Radcliffe. I am in general agreement with it and therefore I need not deal with any other points.
I agree that this appeal should be dismissed.
My Lords,
The Appellant was employed by the Respondents as an electrician working in their Crofton Hill Colliery in the County of Northumberland. In April, 1958, he was injured by a stone falling from the roof of a drift in that colliery, and this appeal is the last stage of an action instituted by him to recover damages for the injury that he suffered. So far he has failed at the trial on Assize and in the Court of Appeal: the only ground of claim upon which he relied before us was that this injury arose from a breach of the duty imposed on the manager of the mine by section 48 of the Mines and Quarries Act, 1954, to take "such steps as may be necessary for keeping the road secure".
The relevant facts are very simple and are not now in dispute. The Appellant's accident occurred in a drift connecting a main travelling road with a working seam at a lower level. There was an endless haulage in the drift and on the day in question a tub which had been damaged by derailment was sent up the haulage in order to get it to the pit-bottom. On the way up the drift it was derailed again and collided with and displaced a prop which formed one of the two supports of a roof girder. The girder came down and there was then a...
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