England v National Coal Board
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE BIRKETT,LORD JUSTICE ROMER |
| Judgment Date | 27 April 1953 |
| Judgment citation (vLex) | [1953] EWCA Civ J0427-1 |
| Court | Court of Appeal |
| Date | 27 April 1953 |
[1953] EWCA Civ J0427-1
In The Supreme Court of Judicature
Court of Appeal
Lord Justice Somervell
Lord Justice Birkett and
Lord Justice Romer
MR. H. EDMUND DAVIES, Q.C., and MR ALUN DAVIES (instructed by Messrs Theodore Goddard & Co., agents for Messrs Morgan, Bruce & Nicholas, Pontypridd) appeared on behalf of the Appellant (Plaintiff).
MR. H.V. LLOYD-JONES, Q.C., and MR. D. MEURIG EVANS (instructed by Mr. R.S.S. Allen, agent for Mr. W.H.F. Barklam, Cardiff) appeared on behalf of the Respondent (Defendants).
The Judgment I am about to read is the Judgment of Lord Justice Somervell.
This is an appeal from a decision of Mr. Justice Croom Johnson given at the Glamorganshire Summer Assize at Swansea on July 26th. 1952, when he decided in favour of the Defendants, the National Coal Board.
The Plaintiff was employed by the Defendants at Bwllfa Colliery, Aberdare. He was injured by a shot fired underground. The shot was fired electrically. After the hole has been rammedand the charge inserted, the wires are attached to a detonator. The wires are long enough to enable those concerned to reach a place of safety before the wires are connected to a battery. The circuit is completed by pressing down a switch. The Plaintiff was unable to attend the trial before Mr. Justice Croom Johnson and by agreement his proof was read. Except on one point which is not in the passage I am about to read it was accepted. This is his account of how the accident happened: "On Thursday, the 25th day of January, 1950, I was working on the morning shift commencing at 7 a.m. and due to finish at 2.30 p.m. On this day as I knew that the shotsman, Edward Williams, was shot firing not far away, I shouted to the colliers in the next 'stent' to pass on to the shotsman to come up to my stent. The said shotsman, Edward Williams, came there at about 12 noon. I then told him that I wanted a 'coal hole' fired. He examined the stent and being satisfied as to its condition he agreed to fire one. I then assisted him to ram the hole. After this was done the shotsman began to uncoil the cable. After he had uncoiled the cable I caught hold of the loose end and said 'I will couple up red'. He replied 'O.K. Harry'. I was on my knees as there was no height to stand. I then coupled up the loose and to the detonator wires, and while I was doing this the shotsman was going along the upper end still uncoiling. I assumed that he was warning the other colliers on the upper side as he was going along. It was my intention after coupling up to crawl on my knees towards the lower end to warn the colliers there. It took a little time to connect to the wires as I was wearing a pair of what are known as 'industrial gloves', and the wires being thin it was a little difficult to handle. There were four ends. I had connected one cableend to one of the detonator wires in the hole. I then proceeded to connect the other end of the cable to the other end wire of the detonator. As I was proceeding to do this the hole fired. The hole had been penetrated a yard distant in the coal, and I was, I should say, about 18 inches from the mouth of the hole when the shot fired. The explosion caused the air tobe filled with coal dust and powder smoke. The first reaction I felt was that of blindness and that I had lost all the feeling one has in the face". The shotsman Williams was not called and no explanation given of how he came to fire the shot.
The Plaintiff claims, inter alia, for negligence at common law on the grounds that Williams was the servant of the Defendants, and was negligent on the ground that he fired the shot without giving any warning or taking any steps to satisfy himself that the Plaintiff whom he had permitted or invited to connect the wires to the detonator had finished what he was doing and got to a place of safety.
Shot firing in mines is the subject of the explosives in Coal Mines Order 1934, No. 6, made under section 61 of The Coal Mines Act 1911. Regulations 2(e) and (h) are as follows: "(e) The person firing the shot shall, before doing so, see that all persons in the vicinity have taken proper shelter, and he shall also take suitable steps to prevent any person approaching the shot. He shall also himself take proper shelter. If he has reason to believe that there is a possibility of a shot blowing through into an adjoining place he shall send verbal warning to the persons in that adjoining place to take proper shelter. (h) Where shots are fired electrically they shall only be fired by a person authorised in writing by the manager for the purpose. The authorised person shall not use, for the purpose of firing, a cable which is less than 20 yards in length. He shall himself couple up the cable to the fuse or detonator wires and shall do so before coupling the cable to the firing apparatus. He shall take care to prevent the cable coming into contact with any power or lighting cables. He shall also himself couple the cable to the firing apparatus. Before doing so, he shall see that all persons in the vicinity have taken proper shelter".
Regulation 1 of the General Regulations made under section 86 of The Coal Mines Act, 1911, is as follows: "It shall be the duty of the manager and under-manager to carry out and to the best of their ability enforce the provisions of every Order inforce under the Act regulating the supply, use and storage of explosives, and it shall be the duty of all persons employed in or about the mine to comply with the provisions of the said orders". Pausing here, it is clear that Williams committed a breach of the first sentence of paragraph 2 (o) and of the similar provision in the last sentence of 2 (h). He also broke 2 (h) in that he did not himself couple up the cable to the detonator before coupling the cable to the firing apparatus or at all. The Plaintiff in doing this himself with the approval of Williams was an accessory or perhaps a principal.
These Regulations were considered in the House of Lords in ( Harrison v. National Coal Board 1951 Appeal Cases, page 639). The accident there was at a time when the principle of common employment was in force. The breach of the Regulations was that the shot firer had given no warning as required by 2 (c) and (h). From the statement of facts it would appear that the shot firer ought to have known the Plaintiff was there. The Plaintiff started by claiming as here for negligence at common law and for breach of statutory duty, the shot firer having it was alleged committed a breach of the Regulations I have cited. Common employment was a complete answer to a claim at common law, as the Plaintiff was relying solely on the negligence of the shot firer so that was abandoned in the court of first instance.
The questions taken to appeal were whether the provision broken imposed a duty on the owners and also on the manager or solely on the shot firer. If on the manager it was submitted that he was not in common employment. It was held that the only duty in the manager was to enforce the regulation to the best of his ability, and this on the Judge's finding he had done. Lord Porter came to the conclusion "that the Act and regulations create two sets of duties, one placed on the owner personally; the other upon his employees. The first may exist either by direct enactment or be derived from the substance of the relevant section or regulation. Where, however, neither of these circumstances exists the only obligation of the owner is to be found in section suchas section 75" (of the Coal Mines Act, 1911) "which impose a qualified duty upon the owner, making him responsible both civilly and criminally umless he has used due care" (pages 658 and 659). Having regard to the duties imposed on a shot firer "which he alone can carry out, with which even a manager is not allowed to interfere and which, moreover, it would be difficult if not impossible to oversee" (page 653), the provision in question did not impose a duty on the owners. Similar opinions were expressed by the other noble and learned Lords who constituted the majority, Lord Reid dissenting.
A further question was canvassed but not decided in Harrison's case, and it was this. Assume that the doctrine of common employment was abolished as it has since been; assume that the Plaintiff cannot establish negligence at common law of the fellow servant but only on a breach of statutory duty imposed not on owners or employers as such but on a servant, would the owners be liable on the same basis as if the damage was due to negligence by one of the servants at common law? Lord MacDermott thought that they would. Lord Porter at the end of his opinion made it clear that he regarded the point as open. Lord Normand expressly reserved it. Lord Oaksey's agreement with the other majority opinions was clearly on the point which arose for decision on which they were all agreed. For reasons which will emerge I do not find it necessary to decide the point. The learned Judge regarded Harrison's case as leading to a conclusion in favour of the Defendants. It is a complicated area and, although, of course, Harricon's case precludes the Plaintiff from alleging a breach of...
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