Harrison v National Coal Board
| Jurisdiction | England & Wales |
| Judge | Lord Porter,Lord Normand,Lord Oaksey,Lord MacDermott,Lord Reid |
| Judgment Date | 08 May 1951 |
| Judgment citation (vLex) | [1951] UKHL J0508-1 |
| Date | 08 May 1951 |
| Court | House of Lords |
[1951] UKHL J0508-1
Lord Porter
Lord Normand
Lord Oaksey
Lord MacDermott
Lord Reid
House of Lords
Upon Report from the Appellate Committee, to whom was referred the Cause Harrison against National Coal Board, that the Committee had heard Counsel, as well on Tuesday the 13th, as on Wednesday the 14th, Thursday the 15th, Monday the 19th and Tuesday the 20th, days of February last, upon the Petition and Appeal of George Harrison, of 4 Edward Street, Mapplewell, Coal Miner, praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of His Majesty's Court of Appeal of the 21st of December 1949, might be reviewed before His Majesty the King, in His Court of Parliament, and that the said Order might be reversed, varied or altered, or that the Petitioner might have such other relief in the premises as to His Majesty the King, in His Court of Parliament, might seem meet; as also upon the printed 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 His Majesty the King Assembled, That the said Order of His Majesty's Court of Appeal, of the 21st day of December 1949, complained of in the said Appeal, be, and the same is hereby, Affirmed, and that the said Petition and Appeal be, and the same is hereby, dismissed this House: And it is further Ordered, That the Appellant do pay, or cause to be paid, to the said Respondents the Costs incurred by them in respect of the said Appeal, the amount thereof to be certified by the Clerk of the Parliaments.
My Lords,
This is an appeal from an order of the Court of Appeal which affirmed a judgment of the Hon. Mr. Justice Jones in favour of the Respondents.
The question arising for determination is whether the Respondents are liable to pay damages to the Appellant in respect of injuries suffered by him on the 27th day of January, 1948, while working in their employment. The principal issue raised is whether, upon a true construction of Clause 2 ( e) and 2 ( h) of the Explosives in Coal Mines Order 1934 ( Statutory Rules and Orders 1934 number 6) made under section 61 of the Coal Mines Act 1911 and of Regulation 1 of the General Regulations ( Statutory Rules and Orders 1913 No. 748) made under section 86 of that Act, the Respondents are responsible for the wrongful firing of a shot in breach of the former Order, whereby the Appellant was injured.
The following are the material provisions of the Coal Mines Act, 1911:—
Section 61 (1). " Explosives. (1) The Secretary of State may, by order of which notice shall be given in such manner as he may direct, regulate the supply, use, and storage of any explosives at mines or any class of mines, and may, by any such order, prohibit the use of any explosive which appears to him of a kind to be or to be likely to become dangerous in mines or any class of mines, either absolutely or subject to such conditions as may be prescribed by the order."
Section 74. "Every person shall observe such directions with respect to working as may be given to him with a view to comply with this Part of this Act or the regulations of the mine or with a view to safety."
Section 75 of the Coal Mines Act, 1911, which is contained in Part II of the Act, provides:—
"Any person who contravenes or does not comply with any of the provisions of this Part of this Act shall be guilty of an offence against this Act, and, in the event of any contravention of or non-compliance with any of the provisions of this Part of this Act by any person whomsoever, the owner, agent, and manager of the mine shall each be guilty of an offence against this Act, unless he proves that he had taken all reasonable means by publishing and to the best of his power enforcing those provisions to prevent that contravention or non-compliance."
Section 86 (1). " General Regulations. (1) The Secretary of State may by order make such general regulations for the conduct and guidance of the persons acting in the management of mines or employed in or about mines as may appear best calculated to prevent dangerous accidents and to provide for the safety, health, convenience, and proper discipline of the persons employed in or about mines, and for the care and treatment of horses and other animals used therein, and any such regulations may vary or amend any of the provisions contained in Part II of, or the Third Schedule to, this Act."
Section 89 (1). "Regulations applicable to mines. (1) The general regulations applicable to a mine, as supplemented or modified by the special regulations, if any, for the time being in force with respect to the mine shall be the regulations of the mine."
Section 90. " Penalty for breach of regulations. If any person who is bound to observe the regulations of any mine, acts in contravention of or fails to comply with any of them, he shall be guilty of an offence against this Act, and also the owner, agent, and manager of such mine shall each be guilty of an offence against this Act, unless he proves that he had taken all reasonable means, by publishing and to the best of his power enforcing the regulations, to prevent such contravention or non-compliance."
The following are the material paragraphs of the General Regulations 1913 and the Explosives in Coal Mines Order 1934:—
General Regulations 1913 (S.R. & O. 1913 No. 748).
Part I. General. "1. 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 in force 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."
Explosives in Coal Mines Order 1934 (S.R. & O. 1934 No. 6).
Part I. General Provisions. "2 ( 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."
Part I. General Provisions. "2 ( 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."
Part II. General Provisions. "6. In all cases in which permitted explosives are required by this Order to be used:—
( a) Competent persons (in this Order called shot-firers) shall be appointed in writing by the manager for the purpose of firing shots, and no shot shall be fired except by a shot-firer …"
The facts which give rise to the Appellant's claim can be shortly stated.
On the 27th day of January, 1948, the Appellant was employed by the Respondents at their North Gawber Colliery as a stone contractor and coal face worker, and was driving a drift from one seam to another when it became necessary to have a shot prepared and fired to loosen the stone. The Appellant bored three holes in which the charges should be placed, and sent for the deputy, one Joseph Spence, who was the authorised shot-firer for that part of the mine.
Spence came to the drift soon after and prepared to charge and fire the shots. The Appellant was then engaged, in accordance with his duties, in making the place ready for the firing of the shots by removing tools from the vicinity and laying down iron sheets known as flags. After Spence had put in the shots, stemmed them and coupled his shot firing gear to the detonator wires, he ran out his cable and went out of the drift, leaving the Appellant in the drift. Spence then fired a shot without giving any warning to the Appellant, who suffered severe lacerations and abrasions.
On these facts the Appellant alleged that his injuries were caused by breaches of duty on the part of the Respondents or on the part of those for whose acts and omissions the Respondents were liable.
In the Court of First Instance the Appellant also alleged a breach of Common Law duty on the Respondents' part, but as admittedly the Appellant and Spence were engaged in a common employment and that fact constituted a defence at the time of the accident he confined his claim in the Court of Appeal to a breach or breaches of statutory duty.
By their defence and at the trial the Respondents alleged that the duties imposed by clause 2 ( e) and 2 ( h) of the Order were not imposed upon the Respondents but upon Spence personally; and that if he was in breach of such duties the defence of common employment applied.
The action was tried by the Honourable Mr. Justice Jones at Leeds Assizes. At the trial the Respondents did not call Spence as a witness, but called evidence, which the learned Judge accepted, that they took all reasonable means by publishing the regulations relating to shot-firing to secure compliance with them and that they took all precautions to ensure that shot-firing should be carried out with care.
The contention on behalf of the Appellant (I quote from his case) was that upon proper construction of clause 2 ( e) and 2 ( h) of the Explosives Order the duty, though imposed upon the shot-firer to whom the work of shot-firing was entrusted, was also a duty imposed upon the mine owner, inasmuch as such work was a necessary part of the mine owner's operations; and that unless the language used in the...
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