Hamilton v National Coal Board
| Jurisdiction | England & Wales |
| Judge | Viscount Simonds,Lord Cohen,Lord Keith of Avonholm,Lord Jenkins |
| Judgment Date | 15 December 1959 |
| Judgment citation (vLex) | [1959] UKHL J1215-1 |
| Date | 15 December 1959 |
| Court | House of Lords |
| Docket Number | No. 1. |
[1959] UKHL J1215-1
House of Lords
Viscount Simonds
Lord Radcliffe
Lord Cohen
Lord Keith of Avonholm
Lord Jenkins
Upon Report from the Appellate Committee, to whom was referred the Cause Hamilton against National Coal Board, that the Committee had heard Counsel, as well on Wednesday the 25th, as on Thursday the 26th, days of November last, upon the Petition and Appeal of John Hamilton, Colliery Worker, residing at 20 Yuille Terrace, Blackburn, West Lothian, praying, That the matter of the Interlocutors set forth in the Schedule thereto, namely, an Interlocutor of the Sheriff Substitute of the Lothians and Peebles at Edinburgh (William Garrett) of the 31st of July 1958 and also an Interlocutor of the Lords of Session in Scotland of the Second Division of the 27th of November 1958, might be reviewed before Her Majesty the Queen, in Her Court of Parliament, and that the said Interlocutors 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 Interlocutors of the 31st day of July 1958 and of the 27th day of November 1958, complained of in the said Appeal, be, and the same are hereby, Recalled: And it is hereby Declared, That the words "shall be properly maintained" in section 81 (1) of the Mines and Quarries Act, 1954, impose an absolute obligation on the Respondents to have at all times the machinery and apparatus referred to in that sub-section in proper and efficient working order: And it is further Ordered, That the said Cause be, and the same is hereby, remitted back to the Court of Session in Scotland to proceed as accords: And it is further Ordered, That the Respondents do pay, or cause to be paid, to the said Appellant the Costs of the Action in the Court of Session and also 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 calendar 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,
Section 81 (1) of the Mines and Quarries Act, 1954, enacts that "All parts and working gear, whether fixed or movable, including the anchoring and fixing appliances, of all machinery and apparatus used as, or forming, part of the equipment of a mine, … shall be of good construction, suitable material, adequate strength and free from patent defect, and shall be properly maintained". The only question on this appeal—and it is an important one—is what is the meaning of these last five words.
The Appellant, a miner in the employment of the Respondents at Whiterigg Colliery, East Lothian, in August, 1957, suffered an injury in the course of his employment. It was his duty to tighten a main haulage rope at the mine whenever it became slack. For that purpose there was provided by the Respondents a hand-operated winch contained in a metal frame which rested on the ground but was not bolted to it. The Appellant averred that as he was winding the winch he placed his hand on the frame to steady it and that the whole winch suddenly tipped forward pinning his left hand between the raised back portion of the framework and a roof girder. This, he averred, was due to the fact that there were no stells in position to steady the winch. Thus the Respondents failed to maintain properly the winch, which was part of their statutory duty. It mattered not that the absence of stells was unexplained: it might have been due to the act of a third party or to the development of a latent defect. Nevertheless the Respondents were in breach. If the stells were not there, the statutory obligation properly to maintain the winch had not been observed. This is what is sometimes called an absolute obligation.
My Lords, this view of the statutory obligation did not commend itself to the learned Sheriff-Substitute of the Lothians and Peebles nor to the majority of the Second Division of the Court of Session. The Appellant's claim was dismissed; it was held that he had not made a relevant case that the equipment was not properly maintained. It is clear that all turns on the meaning in their context of those two words.
My Lords, it is impossible to approach this case uninfluenced by previous decisions upon this and other Acts, and I find more assistance in the construction which has been put upon that simple word "maintain" in the context of machinery and works of all kinds, whether under the Factories Acts or the Mines Act or Regulations made thereunder, than I do in the words which have been supposed to qualify or define that word. Therefore I go first to a case in this House, Smith v. Cammell, Laird & Co. Ltd. [1940] A.C. 242. There the question was as to the meaning of the word "maintain" in Regulation 31 of the Shipbuilding Regulations, 1931, made under the Factory and Workshop Act, 1901. There was nothing in the context to expand or limit it except a statement of the object to which I refer later. It was held to impose an absolute obligation. I need cite only the words of Lord Russell of Killowen at p. 263:
"The duty being, as I think it is, effectively cast upon the Respondents, is it an absolute duty, or can they excuse themselves by saying that by competent inspection at regular and frequent intervals they have done everything possible to discharge their duty? I think the duty is an absolute one: the wording is too strong to justify the milder view. The words 'All staging shall … be maintained' point in my opinion to an absolute not a qualified obligation."
The word "absolute" in this connection has become part of the dictionary of the law. Sometimes the word "continuing" is substituted for it. Either word means that in effect the employer warrants that the machine or other equipment which he is obliged to maintain will never be out of order. It is no doubt a difficult conception, but the employer has his refuge in the escape section of the relevant Act, so far as it applies.
I turn next to Galashiels Gas Co. Ltd. v. O'Donnell or Millar [1949] A.C. 275. For it is, I think, upon that case, or rather upon certain observations of the noble and learned Lords who took part in its decision, that the judgments in the Scottish Courts have been largely founded and that the Respondents now rely. In that case the question arose upon the Factories Act, 1937. The words "properly maintain" are contained in section 22 (1) of the Act, but, in addition, in section 152 (a definition section) "maintained" is defined as meaning "maintained in an efficient state, in efficient working order and in good repair". I have read with great care, and more than once, the speeches in the House in that case, and I think that it is fair to say that the determining factor with at least the majority of their Lordships was the presence of the definition clause. Lord MacDermott, for instance, with whose speech, if I may respectfully say so, I have great sympathy, pointed out that the word "maintain" may be used to indicate the continuance of a particular state or in reference to the acts done to continue or perpetuate that state, and he was guided to the former interpretation by the definition. But though this may be so, it is another thing to say that in the absence of the definition they would have come to a different conclusion. Could they have adopted the second meaning suggested by Lord MacDermott, the "servicing" meaning as it has been called, consistently with the decision in Smith's case? I find great difficulty in thinking that they could. In Smith's case there was no definition clause, and I see nothing to differentiate it from the present case except that here we have not a statement of the object for which the plant is required to be maintained but have the qualifying adverb "properly This word was said by Lord Patrick to be quite inapposite to the former meaning, that is, the continuance of a certain state, and by Lord Mackintosh to be more appropriate to the latter. I cannot give the same weight to the word. If maintained" simpliciter can properly refer to the continued state of the thing required to be maintained, I see no reason why "properly maintained" cannot make the same reference. Can it be anything more than a negligible indication of the one meaning or the other? It would not, I think, be wise in this area of legislation to found on such refinements of language. It is difficult to suppose that the Legislature, knowing from Smith's case what meaning must be attributed to the word "maintain" alone, thought to give it a different meaning by adding the word "properly
I need refer to no other case than Latimer v. A. E. C. Ltd. 1953 A.C. 643. In that case section 25 (1) of the Factories Act, 1937, was under review. There again the definition section played its part and again had its influence upon the decision of some of those who took part in it. But it was otherwise with the late Lord Asquith of Bishopstone, who expressed the view (which coming from such a source, I do not easily reject) that the same result should be reached without the definition clause. I need say no more about this case than that it provides neither binding nor persuasive authority for distinguishing cases...
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