Hill v National Coal Board
| Jurisdiction | Scotland |
| Judgment Date | 27 February 1976 |
| Docket Number | No. 12. |
| Date | 27 February 1976 |
| Court | Court of Session (Inner House - Second Division) |
SECOND DIVISION.
Lord Dunpark.
NegligenceBreach of statutory dutyMinesDuty of manager to take necessary steps to keep working place secureInference from fact that workman injured by fall of stone at working place that roof insecure and that insecurity detectableOnus of proofMines and Quarries Act 1954 (2 & 3 Eliz. II, cap. 70), sec. 48.1
The pursuer was working at the head of the main gate road in a colliery at the coal face. There had been shot-firing on the previous shift. He was engaged in cleaning up the blown dirt and advancing the support for the roof. Steel girders at three-feet intervals supported the roof. Wooden cladding was placed between the girders, but there were gaps of about one foot between the straps of wood which covered the roof. While the pursuer was shovelling dirt beneath one of the girders, there was a fall of stones from the roof. The pursuer was struck and injured by one of these stones, which passed through one of the gaps in the wooden cladding.
The pursuer was successful in an action of damages in which he founded,inter alia, on a breach of sec. 48 of the Mines and Quarries Act 1954. It was contended on behalf of the defenders that an inference of a detectable insecurity of the roof could not be drawn simply from the fact that a stone had fallen, and that the pursuer had not proved what steps the manager should have taken to detect the insecurity.
Held (aff. judgment of Lord Dunpark) (1) (a)that it was a proper inference from the manager's evidence that cross-cladding to prevent a fall of a stone would be required if there was reason to believe that the roof was insecure; (b) that as there had been shot-firing on a previous shift, the possibility of this having affected the security of the roof was not something so slight as to justify it being ignored and it called for a pre-shift inspection to see that the roof was secure; (c) that the pursuer had proved that the roof was insecure because of the fall of the stone from the roof; (d) that there might be cases where a pursuer could lead evidence to show that an insecure roof was detectable by some form of inspection, but it was not incumbent upon him to do so; (e)that it was the responsibility of the manager to inspect the roof for safety and to take steps to remove the danger which an insecure roof might create, and as the defenders' evidence was silent about inspection it could not be said that the manager had discharged the duties imposed
on him because it had not been established that he took all the necessary steps to obtain the requisite information; and (f)that it therefore did not lie in the mouths of the defenders to argue that it was for the pursuer to prove that the insecurity was detectable and accordingly foreseeable(2) If this approach was wrong, that the pursuer could invokeonus; and as the pursuer had proved that there was an insecurity the burden lay on the defenders to show that the manager had taken all the steps necessary to keep the roof secure.
Sinclair v. National Coal BoardSC1963 S.C. 586; 1963 S.L.T. 296; followed.
Brown v. National Coal BoardELRUNK [1962] A.C. 574; [1962] 1 All E.R. 81, H.L.; O'Hanlon v. John O. Stein & Co., Ltd, 1965 S.C. (H.L.) 23; 1965 S.L.T. 125; Kerr v. National Coal BoardUNK 1968 S.L.T. 49; Anderson v. National Coal BoardSC1970 S.C. 42; 1970 S.L.T. 214;referred to.
(3) On either view the pursuer had proved his case.
ProcessCondescendenceSufficiency of avermentsPursuer averred case of inadequacy of wood cladding which was not proved but succeeded on basis of insecurity at a particular placeWhether defenders prejudicedWhether sufficient notice of case pledWhether a variation, modification or development of what was averred or something new, separate and distinct.
A pursuer pled that it was normal practice and obviously necessary that wooden cladding should have fully covered spaces between girders which supported the roof above the coal face. He also averred that the defenders were in breach of sec. 48 of the Mines and Quarries Act 1954. He failed to prove that an accident was caused by inadequate wood supply to cover the roof. It was established that the accident had occurred through a detectable insecurity of the roof at the place where the pursuer had been working.
It was held by the Lord Ordinary that the powerful inference from the evidence was that the accident was caused by a breach of sec. 48 of the 1954 Act in that there was a failure to make a proper inspection of the roof.
Held (1) that the pursuer's pleadings had to be read as a whole. Though the pursuer had not proved a need for overall cladding or a shortage of wood for packing, that did not detract from the specific complaint of gaps in the cladding linked to the insecurity of the roof which were averred by the pursuer to be in breach of sec. 48 (1) of the Mines and Quarries Act 1954. It could not be said therefore that the defenders were deprived of sufficient notice of the case they had to meet on the statutory ground of fault.
(2) That even if there was some substance in the argument that there was insufficient notice of the case, the ground on which the Lord Ordinary proceeded was no more than a variation, modification or development of what was averred.
Observations in Burns v. Dixon's Iron WorksSC1961 S.C. 102 at 107, and in O'Hanlon v. John G. Stein & Co., Ltd, 1965 S.C. (H.L.) 23 at 42 referred to.
Joseph Graham Hill raised an action against the National Coal Board for reparation for personal injuries sustained as a result of an accident in the course of his employment with the defenders at his place of work. The pursuer's case against the defenders was founded on a breach of section 48 (1) of the Mines and Quarries Act 1954 and fault and negligence at common law.
The pursuer's pleadings set forth, inter alia:(Art. 2) "On or about 9th December 1969 the pursuer in the course of his employment as a power loader with the defenders at Killoch Colliery was sent to the Main Gate Head at the coal working face to carry out brush working Those engaged on brushing work required to drill the holes for shotfiring and thereafter clear the material brought down and secure the roof by inserting arched girders at intervals of about 3 feet to create a road about 14 feet wide and 12 feet high. Wooden packing or cladding was inserted between the girders to prevent falls of rock onto the road. It was normal practice and obviously necessary that wooden packing should fully cover the spaces between the girders. On said road for a distance of about 200 feet the road had been extended without full packing of wood. Gaps had been left up to about 1 foot wide owing to insufficient wood being made available. Prior to said date complaints had been made to the defenders' manager, under-manager, overs-man and the deputy of the section that the state of the roof was unsafe due to inadequate wood in the roof " (Art. 3) "The said accident was caused by the breach of statutory duty cm the part of the manager of the said mine for whose actings the defenders are liable. It was the duty of the defenders' said manager to comply with section 48 (1) of the Mines and Quarries Act 1954 which provides [quoting the subsection]. The defenders' said manager failed in this duty and his failure caused the accident. The pursuer was injured in the road of a mine or in a working place within the meaning of the section. The said manager failed to take steps necessary for keeping the said road secure in respect that there was inadequate wood covering the roof leaving gaps through which rock was liable to and did fall and injured the pursuer "
The facts established at the proof, from the opinion of the Lord Ordinary (Dunpark), are summarised as follows. There had been shotfiring on the night shift at the pursuer's place of work. The day-shift men, of whom the pursuer was one, had the job of cleaning up blown dirt and advancing the support for the roof and sides of the road, which consisted of three-piece girders. When the pursuer reached his place of work at the beginning of his shift he did not look at the roof and began to shovel away blown dirt lying on the floor of the road. While working under a girder near the coal face a stone or stones fell from above the pursuer and struck him. This was the only fall of a stone or stones that had occurred for some weeks in advancing this particular road. The biggest stone lying on the floor after the accident was about a foot long. It was not proved that the roof of the road required overall cladding and it was not proved that the accident was caused by inadequate supply of wood for cladding. None of the witnesses at the proof had made a detailed examination of the roof at the locus either before or after the accident. The support rules at the colliery provided for eight straps, four inches wide, as longitudinal cladding between girders to cover the roof. If two of these straps were set above the apex of the girder four inches apart and the road was 12 feet wide, there were inevitably gaps in the long straps over the pursuer's head big enough to allow a stone of up to 12 inches to fall through. The balance of probability pointed to the stone having fallen directly from the roof onto the pursuer. The fact that the stone fell demonstrated that the roof was not secure when the stone fell. As the stone fell within an hour of the start of the shift, the reasonable inference was that the roof was not secure at the beginning of the shift and that the stone had probably been left in an insecure state by the night shift.
The colliery manager (who was accepted as a reliable witness by the Lord Ordinary) gave evidence about the steps taken by him to keep the roof secure. The following rsum of his evidence is taken from the opinion of the Lord Justice-Clerk in the reclaiming motion:"What was his evidence? He deponed that in his safety rules he specified the minimum requirements...
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