Cook v National Coal Board
Jurisdiction | England & Wales |
Judge | THE MASTER OF THE ROLLS,LORD JUSTICE HARMAN,LORD JUSTICE DONOVAN,THE MASTER |
Judgment Date | 11 July 1961 |
Judgment citation (vLex) | [1961] EWCA Civ J0711-1 |
Date | 11 July 1961 |
Court | Court of Appeal |
[1961] EWCA Civ J0711-1
In The Supreme Court of Judicature
Court of Appeal
The Master of The Rolls
(Lord Evershed)
Lord Justice Harman and
Lord Justice Donovan
MR MARVEN EVERETT, Q. C. and MR G. MILNER (instructed by Mr Donald H. Haslam, Agent for Mr C. M. H. Glover, Doncaster) appeared as Counsel for the Appellants.
MR STANLEY PRICE, Q. C. and MR S. S. GILL (instructed by Messrs Raley & Pratt, Barnsley) appeared as Counsel for the Respondent.
: We need not trouble you, Mr Milner.
This appeal relates to an unfortunate accident which took place on the 26th November 1959 in Thurcroft Main Colliery in the County of York. A plan which is before us Illustrates the place whore this accident occurred. There is running across our plan what is not in doubt for the purposes of this case to have been a road. The road contains upon it first of all a 30-inch conveyor belt and then below that, as I look at the plan, a rail track on which tubs wore during certain shifts either hauled up to the outbye on the right or lowered to the inbye on the left. The section also on the sketch shows that the road which I have described was in fact one inclined quite steeply towards the outbye: the gradients in some places being as much as 1 in 6. Mr Cook, the plaintiff in the action, was, as I understand it, In accordance with his duties at a point on the road indicated by "seat and control switches" and it was for him, amongst other things, to see whether anything got on to the conveyor belt which Interfered with Its proper use. It should be stated that the coal which was cut from the coal face was transferred along the conveyor belt, the rail track being used not for the conveyance of coal but in order that such things as pit props should be taken down in tubs to the coal face, and other materials, waste materials, taken to the outbye. On the shift when this accident occurred and when Mr Cook was on duty the rail track was not in use at all, and it is quite clear that according to the regulations of the mine it should not then have been used. The use of the tubs was during another and preceding shift. Indeed, in that connection it is not irrelevant to refer to the section to which my Brother Donovan alluded, Section 39, which provides that a length of road such as we are here concerned with should be so managed that during the shift or the period in the shift with which we are concerned the tubs must not be moved at all along or over this track.
On the day in question and shortly before this accident occurred it appeared that a stone got fast between the centralisers on the conveyor belt, and that having happened it was without doubt Mr Cook's duty to go and remove it or release It. For that purpose he crossed over the rail track to the conveyor belt and did remove or otherwise get rid of the obstructing stone on the belt. It seems that from time to time during his period of duty be did so cross the track to deal with problems which arose in connection with the conveyor belt; but on this occasion he had a misfortune. Although he had crossed from his place on what I will call the south side of the road to the conveyor belt without any mishap, on going back he caught his foot in the rope which was between the rails and which was attached at the inbye end of it to certain trucks left standing on that side of the place where the plaintiff was working. He fell and sustained injuries which somewhat unfortunately were more grave than one might suppose from such an accident. The total damage having been assessed at £400, it has not, as Mr Price has stated in this Court, been at any relevant time in dispute that Mr Cook was himself, to say the least, very careless in not looking to see where he was stapping, and in the result he was regarded by the learned Judge as at fault to the extant of three-quarters, so that the award was £100 for this injury.
The case was brought by Mr Cook founded both upon common law negligence and also upon his civil right of action for breach of Section 34 of the Mines and Quarries Act of 1954. So far as the latter section is concerned, its terms, so far as relevant, are thus: It shall be the duty of the manager of every mine to take, with respect to every length of road therein, being a length in which vehicles or conveyors run" etc., "such steps as may be necessary to secure that the following provisions are complied with, namely,…(b) every such length of road shall be kept free from obstructions and the floor thereof shall be kept in good repair and in such condition that persons or animals who use that length of road can tread it with safety and reasonable convenience".
So far as the case for negligence is concerned, the learned Judge rejected it and there has been no cross appeal on Mr Cook's part. According to the learned Judge, the witnesses on both sides were unimpressive; of one of them, to whose evidence I shall allude presently, ho said that ho was "the best of a bad lot". Certainly the learned Judge was not favourably impressed with the plaintiff's evidence which, putting it quite briefly, was to this effect, that this rope which caused his calamity was some 18 inches above the level of the track itself, that it should never have been there and that it was quite unusual and unexpected that it should have been there. That view of the facts was, I may say, substantially rejected in its entirety by the learned Judge. The learned Judge found first of all that the rope was nothing like the height stated by the plaintiff from the ground; in fact it was some four or five inches only from the ground and would be only about an inch or so above the top of the rails themselves on which the tubs ran. Furthermore, the learned Judge found that it was quite a common occurrence for some tubs at the end of the preceding shift to be left on the inbye side with the rope holding them so as to be moro or less taut and above ground to the extent I have stated, four or five inches. In those circumstances, and in view of the fact that over a considerable period of time nobody in this road, which is well lighted, had had any misfortune of the kind Mr Cook suffered, the learned Judge held on the question of negligence that there was no basis for holding that the employers, the National Coal Board, should as reasonable employers have contemplated a danger in this rope being in that position. So much for the matter of negligence, though I think it has a bearing also upon the other part of the case with which alone we are concerned.
The second part of the case rests, in a sentence, solely upon this: was the rope in the position in which I have described it, according to the learned Judge's finding, an obstruction? It is not in doubt that a very recent decision reported in this week's number of the All England, Reports supports the view that the language of these sections of the Act of 1954 are strict. It is no answer to say, if this rope was an obstruction, that it was not much of an obstruction or that it was in some way excusable apart from a possible defence based upon Section l57 that it was impracticable to get rid of it. I do, therefore, approach the matter bearing in mind the view that Parliament has thought fit to place these stringent obligations on those responsible for the conduct of what is, after all, a somewhat dangerous trade. But the word "obstruction" is, after all, one of ordinary usage and has, I take it, to be applied in any given case to the circumstances of that case.
Here the situation was that at the end of the...
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