Davies & Others v The Secretary of State for Energy and Climate Change (as Successor in Title to the Liabilities of the British Coal Corporation)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Tomlinson,Lady Justice Hallett,Lord Justice Mummery |
| Judgment Date | 25 October 2012 |
| Neutral Citation | [2012] EWCA Civ 1380 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B3/2011/0187 |
| Date | 25 October 2012 |
[2012] EWCA Civ 1380
Lord Justice Mummery
Lady Justice Hallett
and
Lord Justice Tomlinson
Case No: B3/2011/0187
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION, LEEDS DISTRICT REGISTRY
His Honour Judge S P Grenfell
[2011] EWHC 11 (QB)
Royal Courts of Justice
Strand, London, WC2A 2LL
David Allan QC and Ivan Bowley (instructed by Irwin Mitchell Solicitors) for the Appellant
Leigh-Ann Mulcahy QC and Andrew Kinnier (instructed by Nabarro LLP) for the Respondent
Hearing dates : 30 April – 2 May 2012
Introduction
This appeal is concerned with the working conditions which obtained in coalmines in England and Wales between 1954 and 1994. Specifically it concerns the question whether eight representative miners should be allowed to bring, long after the expiry of the applicable limitation period, actions against the operators of the mines alleging that, negligently and in breach of statutory duty, the operators of the mines exposed them to conditions which were responsible in due course for the onset and development of osteoarthritis of the knee.
The working lives underground of the eight Claimants together span the period 1954 – 1993.
The significance of the earlier date, 1954, is that, as is common ground, the Limitation Act 1939 renders statute barred any cause of action vested in an English or Welsh miner arising before June 1954. I can leave out of account for present purposes that there are apparently within the Group bringing this litigation Scottish miners in respect of whom the relevant cut off date would, it is said, be 1949. The relevant period ends in 1994, when the assets of the British Coal Corporation, the successor of the National Coal Board which was established in 1947, were transferred to the private sector. By then the majority of the deep mines in England and Wales had been closed. The Defendant/Respondent Secretary of State succeeded to the liabilities of the BCC and thus also of the NCB in 1997. The BCC was wound up in 2004.
One of the lead Claimants, William Davison, has sadly died since the trial of the preliminary issues against the outcome of which this appeal is brought. That outcome is that the actions should not be allowed to proceed. There is no doubt that all eight lead Claimants suffer, and in Mr Davison's case suffered, severe, painful and disabling osteoarthritis of the knee. There is also no doubt that a substantial cause of the development of this chronic disease in the eight lead Claimants at the relatively early stage of their lives at which it manifested itself was the repeated jarring and stresses to their knee joints to which their conditions of work underground inherently gave rise. There are many other factors which may contribute to the development of osteoarthritis. They can be considered under the following broad groups:—
a) inherited (genetic factors)
b) joint surface damage
c) repetitive joint damage
d) inflammatory conditions
e) increased strain on the joint
f) abnormal movement of the joint
Repetitive joint damage is the most significant of the causative factors for present purposes, although it should at the outset be stressed that such damage may be caused by the sustaining of repeated minor trauma such as occurs, for example, in the course of playing contact sports. An example of a condition which causes increased strain on the joint is obesity.
It is accepted by the lead Claimants that repeated jarring of and stressing to the knee joint was at all material times an inherent and inevitable concomitant of working in an underground mine. It is therefore important to note at the outset that this litigation is concerned with an attempt by the miners to establish that the conditions and the manner in which they were required to work exposed them to additional risk of sustaining repeated jarring and stressing to their knee joints, over and above the risk of that nature necessarily inherent and inevitable in underground mining. Thus the lead Claimants seek to show that there were aspects of those working conditions which were both avoidable and, in accordance with the standards of knowledge and care prevailing at the time, ought reasonably to have been avoided. As the judge below remarked, at paragraph 54 of his judgment, "for obvious reasons the Claimants cannot present a case that each Claimant should not have been exposed at all to the rigours of underground mining. That would have involved presenting a case that it was a negligent breach of duty to employ anyone underground." The judge returned to this point at the conclusion of his judgment, at paragraph 399, where he said this:—
"The nature of [the miners'] heavy and demanding work and the varied conditions underground, including often very confined working conditions, were bound to take their toll on their bodies and, in particular, their joints. However, no-one could expect to launch a claim based solely on the premise that it was negligent by the standards of the day to require men to work in those difficult conditions."
The Claimants' case, therefore, involves, as the judge pointed out at paragraph 54 of his judgment:—
"A potential investigation into the causes of those repeated trauma and whether through the recollection of factual matters and expert engineering and medical evidence it is possible to prove that at least a proportion of the minor trauma is avoidable in the sense of having been the result more likely than not of some breach of duty on the part of the NCB/BCC."
We were shown archive photographs said to be illustrative of the working conditions described in detail by the eight lead Claimants in their careful and lengthy witness statements. They included pictures not just of access roadways with very limited headroom, cluttered with obstacles to safe progress, but also of men carrying out heavy lifting and shovelling work from an awkward kneeling or crouched position in conditions so cramped that they could not have assumed a more upright or less awkward working position. To anyone unaccustomed to the conditions in our coalmines in those times the photographs of themselves revealed working conditions which can only be described as appalling. In such circumstances the task of the court is invidious. Few would cavil at the notion that chronic injury sustained in working in such conditions should attract compensation.
Happily since July 2009 osteoarthritis of the knee sustained by miners has been a prescribed condition attracting benefits under the Industrial Injuries Disablement Benefit legislation. The condition to be satisfied in order for a miner suffering from osteoarthritis of the knee to qualify for benefit is work for ten years or more in aggregate in any combination of the following coalmining occupations:
a) Before 1986, as an underground coalminer or
b) After 1985 as:
i) a faceworker working non-mechanised coalfaces; or
ii) a development worker or conveyor belt cleaner or attendant.
A non-mechanised coalface is defined as a face with neither powered roof supports nor a power loader machine which simultaneously cuts and loads the coal. The judge below noted that the availability of this benefit may be small consolation to those who have had their hopes of greater compensation raised by the bringing of this Group litigation. That may be so. However I mention this development because it reinforces the point that this litigation is not concerned with conferring benefit from the public purse on those who sustained injury carrying out unpleasant and dangerous work in the national interest. This litigation is, by contrast, concerned with the extent to which, if at all, the miners can establish that, within the context of an operation which inevitably subjected them to the risk of repeated jarring and stressing to their knee joints, the operators of the mines were at fault in the sense of having exposed the miners to reasonably avoidable risk of such trauma over and above that inherent in working underground in an era before mechanisation and other factors led to a significant decrease in the amount of time most miners spent kneeling and squatting while undertaking heavy physical tasks – cf paragraph 6 of the Report by the Industrial Injuries Advisory Council, Cm7440 August 2008. It was this report which led to prescription for osteoarthritis of the knee in coalminers for the purpose of making available the benefit which I have described. It is only if fault can be proved that the miners will be entitled not just to a benefit but to recover damages from their erstwhile employers or rather from the Secretary of State who has assumed their liabilities.
Furthermore this appeal is not concerned with the question whether such fault can be proved, although if it could be shown that the attempt to prove such fault is hopeless, the appeal could not succeed. So much is established by the decision of the Supreme Court in AB and Others v Ministry of Defence, [2012] 2 WLR 643, colloquially known as the "Atomic Veterans Litigation". This appeal is concerned with the question whether it would be equitable, i.e. fair, to allow the Claimants to demonstrate actionable fault so long after the expiry of the relevant limitation period. Of the eight lead Claimants, the shortest period of delay between expiry of the limitation period applicable to his claim and the issue of these proceedings is 10 years. The...
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