John G. Stein and Company Ltd v O'Hanlon
| Jurisdiction | England & Wales |
| Judge | Lord Reid,Lord Evershed,Lord Hodson,Lord Guest,Lord Wilberforce |
| Judgment Date | 03 February 1965 |
| Judgment citation (vLex) | [1965] UKHL J0203-3 |
| Date | 03 February 1965 |
| Court | House of Lords |
[1965] UKHL J0203-3
House of Lords
Lord Reid
Lord Evershed
Lord Hodson
Lord Guest
Lord Wilberforce
Upon Report from the Appellate Committee, to whom was referred the Cause John G. Stein and Company Limited against O'Hanlon, that the Committee had heard Counsel, as well on Wednesday the 25th, Thursday the 26th and Monday the 30th, days of November last, as on Tuesday the 1st day of December last, upon the Petition and Appeal of John G. Stein and Company Limited, having a place of business at Manuel Mine, Whitecross, Linlithgow, praying, That the matter of the Interlocutor set forth in the Schedule thereto, namely, an Interlocutor of the Lords of Session in Scotland, of the Second Division of the 29th of January 1964, might be reviewed before Her Majesty the Queen, in Her Court of Parliament, and that the said Interlocutor might be reversed, varied or altered, or that the Petitioners 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 Frank O'Hanlon, 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 Interlocutor, of the 29th day of January 1964, 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 Appellants do pay, or cause to be paid, to the said Respondent the Costs incurred by him in respect of the said Appeal, the amount thereof 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 Cause shall be, and the same is hereby, remitted back to the Court of Session in Scotland, or to the Judge acting as Vacation Judge, to issue such Summary Process or Diligence for the recovery of such Costs as shall be lawful and necessary.
My Lords,
In this case the Respondent sues his employers the Appellants for damages for personal injuries sustained in their clay mine at Manuel on 24th December, 1959, founding on breach of statutory duty as the cause. The Lord Ordinary, Lord Johnstone, assoilzied the defenders but assessed damages at £4,270 if they were liable. The Second Division recalled the Lord Ordinary's interlocutor and decerned against the Appellants for that sum.
This mine is worked on the stoop and room system. There was a road from which a right hand turn led into a cuddy brae. The Respondent is an experienced repairer: on 23rd December he found in the cuddy brae just round the corner from the road an overhang of clay which he thought might fall. It appears that normally the clay sides of roads in this mine are stable but that from time to time part of the clay falls away near the bottom leaving an overhang of clay at the roof. The Respondent was unable to bring down this overhang by trimming and after consultation with his superiors it was decided to fire two light shots. The manager was informed and told the deputy to carry on. He gave no further instructions but I find nothing surprising in this because what was done appears to have been normal practice in the mine and his subordinates were fully qualified. The shots were fired at the end of the day shift on 23rd December. After the normal visual inspection the next morning the Respondent began trimming at the place where the shots had been fired. Then he heard a sound of clay falling in the road round the corner and he went to inspect. But before he had time to make any tests a large quantity of clay fell and injured him. This happened some six or eight feet from the corner.
The Respondent founds on section 48 of the Mines and Quarries Act, 1954, which is in these terms:
"(1) It shall be the duty of the manager of every mine to take, with respect to every road and working place in the mine, such steps by way of controlling movement of the strata in the mine and supporting the roof and sides of the road or working place as may be necessary for keeping the road or working place secure….
(2) It shall be the duty of the manager of every mine to take such steps as may be necessary for securing that he is at all material times in possession of all information relevant for determining the nature and extent of any steps which it is requisite for him to take in order to discharge efficiently the duty imposed on him by the foregoing subsection."
The Respondent's case is that the manager knew that firing shots and subsequent trimming are liable to make the sides insecure near the place where shots are fired: the manager admitted that it was likely to have an effect on the side of the road at the point where the accident happened. Then it was said that the manager's duty was to take such steps by way of supporting the sides as were necessary for keeping the road secure, and that, as he knew that firing the shots would or might create insecurity, he ought to have given instructions that the sides were to be supported before the shots were fired. The Appellants do not say that it was impossible to do that. They say that to put up supports for the whole area of the sides which might be affected by the shot firing and trimming would be contrary to good mining practice. The area requiring support would be large and it is difficult in clay to make the supports tight. The manager's opinion was that it is safer to take down anything loose than to prop it up. Then the question was developed in argument what could be done in future if supports were put up in such cases: either they would have to remain in position indefinitely or if they were removed later to test and where necessary bring down loose clay their removal would create insecurity. Evidence on these matters is scanty but I shall assume in favour of the Appellants that in circumstances such as existed in this case putting up supports wherever there is reason to suppose that insecurity may be created might on balance do more harm than good. But the Appellants do not rely on section 157 or say that it was impracticable to put up supports. They say that in the circumstances there was no duty under section 48 to put up these supports, and no breach of duty in taking the steps which in fact were taken.
So I find it necessary to examine closely the provisions of section 48. It was held in Brown v. National Coal Board [1962] A.C. 574 that the duty under this section is not absolute but that it depends on foreseeability. But that does not arise in this case because here insecurity was foreseeable. This case requires consideration of two other matters in which section 48 differs from the old duty under section 49 of the 1911 Act. In the first place the duty now is to keep secure whereas formerly it was to make secure. So whatever may have been the position under the old Act, I am of opinion that an obligation to keep secure must involve a duty to take steps to prevent the emergence of foreseeable insecurity. If section 48 now requires the provision of support, and an operation is likely to produce insecurity, the support must be provided before the operation is carried out. It is not enough to wait until the anticipated insecurity develops and then to send a man to set up the support.
The next difference from the old Act creates the real difficulty in this case. Under the old Act there was simply a general obligation to make secure: it would seem that the means for achieving that result were left to be determined in light of the circumstances of each case. But now the duty is specific: the manager must take "such steps by way of controlling movement of the strata in the mine and supporting the roof and sides … as may be necessary". Here the word "and" creates some difficulty. I am not at all clear as to what is meant by controlling movement of the strata and no question about that has been raised in this case. But I cannot suppose that it was intended that in every case the manager must both attempt to control movement of the strata and provide support. I think that this must mean that he must either take steps both to control movement of the strata and provide support, or take steps to do one or other as may be necessary in the circumstances. The symbol "and/or" is not yet part of the English language.
In the present case no steps were taken (either before or after the shots were fired) either to control movement of the strata or to provide support and the question is whether the section can be read in such a way as to permit some other method of achieving security if in the circumstances that other way is as good as or better than the methods prescribed in the section. It appears to me that the natural meaning of the words of the section is that one or other of the prescribed methods must be adopted in every case, subject only (it may be) to that being impracticable within the meaning of section 157. But that interpretation is said to lead to grave practical difficulties in many cases.
What is to be done after the support has been provided? In the present case the overhang in the cuddy brae was insecure. Was it the duty of the manager to provide support for that overhang, and was there a breach of statutory duty in attempting to remove the overhang first by trimming and then by firing the shots? I do not know how far it is possible to test for insecurity or to remove loose material after supports have been put in, but when that is not possible it would seem that the supports must remain permanently. Section 52 allows supports to be removed under safeguards but...
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