Hamilton v National Coal Board
| Jurisdiction | Scotland |
| Judgment Date | 27 November 1958 |
| Docket Number | No. 5. |
| Date | 27 November 1958 |
| Court | Court of Session (Inner House - Second Division) |
2ND DIVISION.
NegligenceBreach of statutory dutyCoal mineProper maintenance of machineryMineworker injured by winch tipping over under sudden strainConstruction of "properly maintained"RelevancyMines and Quarries Act, 1954 (2 and 3 Eliz. II, cap. 70), sec. 81 (1).
The Mines and Quarries Act, 1954, enacts: Sec. 81. "(1) All parts and working gear of all machinery and apparatus used as, or forming, part of the equipment of a mine shall be properly maintained."
In an action of damages against his employers a mineworker averred that, while he had been tightening a main haulage rope in their mine by means of a hand-operated winch mounted in a metal frame, a sudden strain on the rope had caused the frame to tip over so that his hand, which had been gripping the top of the frame, had been injured by being crushed against the roof of his workplace. He pleaded that the accident had been caused by his employers' breach of their statutory duty under sec. 81 (1) in respect that proper maintenance of the winch required the interposition of stells between the roof and the bottom of the frame to prevent the winch from tipping over.
Held (diss. the Lord Justice-Clerk) that in order to fulfil the statutory obligation to maintain the winch properly the only requirement was that it should be kept in good order by servicing and repair, and that since the provision of means to keep the winch steady while in use did not form part of that duty the pursuer's averments were irrelevant; and action dismissed.
Millar v. Galashiels Gas Co., 1949 S. C. (H. L.) 31,[1949] A. C. 275, distinguished.
Latimer v. A.E.C. Ltd.ELR, [1953] A. C. 643,commented on.
John Hamilton, colliery worker, brought an action of damages for personal injuries in the Sheriff Court at Edinburgh against his employers, the National Coal Board. He received his injuries while working in the defenders' mine, and he founded on their alleged breach of the provisions of the Mines and Quarries Act, 1954, section 81 (1).1
The following summary of the pursuer's averments is taken from the opinion of the Lord Justice-Clerk:"The pursuer's job is to tighten a main haulage rope whenever in the course of its operation it becomes slack. For that purpose a hand-operated winch is provided. This winch is contained in a metal frame which sits on the ground but is not bolted to the ground. As the pursuer was winding the winch, he put his hand on the top of the frame to steady it. While he was so engaged, the haulage began to run and the extra pressure caused the frame to cant sideways so that his hand was caught between the frame and the roof. The pursuer's case is that as the winch formed part of the equipment of the mine, it was the defenders duty to maintain the said winch properly, and in performance of the said duty to maintain the said winch securely with stells fitted between the back-end of the under-pinned beams and the roof. I understand this to mean that in order to prevent canting the frame should have been anchored by stells stretching from the base of the frame-work to the roof. The pursuer says further that at the time of the accident there were no stells set in position between the back-end of the under-pinned beams and the roof. This failure to have stells set in position was, in the pursuer's contention, a breach of section 81 (1) of the Mines and Quarries Act, 1954."
The defenders pleaded, inter alia:"(1) The pursuer's averments being irrelevant et separatim lacking in specification, the action should be dismissed."
On 31st July 1958, after a debate on the defenders' preliminary plea, the Sheriff-substitute (Garrett, Q.C.), dismissed the action.
The pursuer appealed to the Court of Session, and the case was heard before the Second Division (without Lord Blades) on 6th and 7th November 1958.
At advising on 27th November 1958,
LORD PATRICK.Your Lordship has described how the accident is alleged to have happened. The cause is said to have been the absence of stells or posts to anchor the hand-operated winch by which the haulage rope was drawn taut. The feature of the case is that the pursuer does not offer to prove that this absence was due to any action of the defenders or of anyone for whose actions they are responsible. Moreover, for aught that appears, their removal may have been a temporary measure for a special and reasonable purpose. He offers to prove only that at the time when the accident happened there were no posts in position and that it was the absence of posts which caused the accident. It follows, he argues, that the defenders are liable to make good to him the damage he has suffered.
He relies solely on section 81 (1) of the Mines and Quarries Act, 1954,17 which is in these terms:"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, and all foundations in or to which any such appliances are anchored or fixed shall be of good construction, suitable material, adequate strength and free from patent defect, and shall be properly maintained." It is upon the latter part of this subsection that the pursuer alone relies, the provision for proper maintenance. The allegation of fault contained in article 3 of the condescendence is in these terms:"The said winch formed part of the equipment of the said mine at the said colliery. It was accordingly the defenders' duty to maintain the said winch properly and in performance of the said duty to maintain the said winch securely with stells fitted between the back of the underpinned beams and the roof. In this duty they failed and so caused the accident." We are accordingly faced solely with an allegation of failure properly to maintain the winch.
It is easy to construe the subsection as obliging the mineowners to warrant that the machinery and apparatus are of good construction, suitable material, adequate strength and free from patent defect, but it is another matter to construe the provision that they "shall be properly maintained" as imposing an obligation on the mineowners to warrant that in all circumstances they shall be safe to use, save only if the accident was due to the sole fault of the person injured. This would involve that although the machinery and apparatus was of good construction, suitable material, adequate strength and free from patent defect, and although the cause of an accident cannot be explained but may have been the act of a third party, not the servant of the
mineowners, or the development of a latent defect which no reasonable inspection would have revealed, the mineowners would be criminally and civilly liable for a breach of the obligation imposed by the subsection. In such a case section 157 of the Act18 would not avail the mineowners since, being unable to point to the cause of the accident, they would be unable to prove affirmatively that it was impracticable to prevent it.
An injunction to maintain machinery and apparatus is at best for the pursuer equivocal. It may mean that a state of affairs previously specified shall be perpetuated, in which case, if the state of affairs is definite, the standard of maintenance is definite. The obligation to maintain may then well be construed as an absolute obligation. It would be difficult, however, to construe as an absolute obligation an injunction to do something which lacked clear definition. Now an injunction to maintain machinery and apparatus may well mean "service" it, or "repair" it, in which case, in the absence of a special definition of "maintain," it involves no definite standard of service or repair, and could not readily be construed as involving an absolute obligation. I think the injunction in this case is to service or repair which to my mind is the more natural meaning of the word "maintain" as used day and daily in relation to machinery and apparatus. Further, if it had been intended that in this case it should mean perpetuate a previously specified state of affairs, the use of the term "properly maintained" seems quite inapposite. The adverb is superfluous. It is, on the other hand, wholly apposite if Parliament here intended the word "maintain" to have the meaning "repair," since repair can be carried out according to many standards and Parliament therefore specified that it should be carried out according to a proper standard.
The injunction in section 81 (1) that the machinery and apparatus shall be properly maintained has not, so far as the debate showed, been the subject of authoritative judicial construction. Similar words in the Factories Act, 193719 have, however, been construed in the House of Lords, and I turn to these decisions to see whether any help in the construction of section 81 (1) of the Mines and Quarries Act, 1954,20 can be derived from the speeches in the House. I take first the case of Millar v. Galashiels Gas Co.SCELR21 In that case an accident happened through the failure of the mechanism of a lift. It was an isolated failure and its cause was never discovered. The employers had taken every practical step to ensure that the mechanism worked properly and the failure was one which nobody could have anticipated. Nevertheless the employers were held to be in breach of the obligation imposed by section 22 (1) of the Factories Act, 1937,22 which provides that "every hoist or lift shall be of good mechanical construction,
sound material and adequate strength, and be properly maintained." The words are like the words with which this case is concerned, but the Factories Act, 1937,23 defined "maintained" as meaning "maintained in an efficient state, in efficient working order and in good repair." No such definition appears in the...
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Hamilton v National Coal Board
...S. C. (H. L.) 31[1949] A. C. 275; Latimer v. A. E. C. Ld.ELR, [1953] A. C. 643, considered. (In the Court of Session 27th February 1959—1959 S. C. 30.) John Hamilton claimed damages from his employers, the National Coal Board, for injuries received by him in an accident which occurred in Wh......