Jones v National Coal Board

JurisdictionEngland & Wales
JudgeLORD JUSTICE DENNING
Judgment Date25 March 1957
Judgment citation (vLex)[1957] EWCA Civ J0325-3
CourtCourt of Appeal
Date25 March 1957
Mary Myfanwy Jones (Widow) Suing as Administratrix of the Estate of Emlyn Jones, Deceased
and
National Coal Board

[1957] EWCA Civ J0325-3

Before:

Lord Justice Denning,

Lord Justice Romer and

Lord Justice Parker.

In The Supreme Court of Judicature

Court of Appeal

Mr GERALD GARDINER, Q.C., and Mr W.L. MARS-JCKES (instructed by Messrs Jaques & Co., Agents for Messrs Cyril Jones, on and Williams, Wrexham) appeared on behalf of the Appellant (Plaintiff).

Mr EDMUND DAVIES, Q.C., and Mr H. EMLYN HOCSON (instructed by Mr Donald H. Haslam, Agent for Mr P.. Lissant, Manchester) appeared on behalf of the Respondents (Defendants).

LORD JUSTICE DENNING
1

The Judgment which I am about to read la the Judgment of the Court.

2

On 21st January 1953 a coal-mines, Emlyn Jones, was buried by a fall of roof in the Llay Colliery at Wrexham and died. His widow brings this action against the National Coal Board claiming damages on the ground that they were in breach of their statutory duties, or alternatively were guilty of negligence at common law.

3

The next step, in order to get back to normal working, was to get out the coal so as to make a normal roadhead again. The whole area was known to be "tender" because of the previous fall, and the wet condition of the strata above the coal. It was unwise, therefore, to make a frontal attack on the face from the roadhead, but better to make a flank attack by working from the side by hand." That is the work on which Emlyn Jones and his mate were about to engage on the morning of his death. Previous shifts had made some progress in this flank attack, and had got out coal from the space underneath two of the rails. Emlyn Jones had just come on the work, and he and his mates were preparing to get more coal when a large fall occurred completely burying thorn. Every effort was made to dig them out. His mate was , but Emlyn Jones died. Afterwards the surveyor found that the rolled steel joist was still in position, but the rails had broken. This seems to show that the steps taken to secure the place outwards from the previous fall had been successful, but that those taken to secure the newly exposed roof were not sufficient.

4

Such being the facts in outline, Mr Gardiner for the widow took before us these points:

5

(i) That the National Coal Board had broken section 49 of the Coal Mines Act 1911 which says that "the roof and sides of every travelling road and working place shall be made secure".

6

(ii) That the National Coal Board had broken section 6 (2) of the Support Rules 1947 which says that "when there are any roof rippings within the roadhead, a bar or bars shall be sot as near as practicable to each ripping lip extending across the whole width of the ripping".

7

(iii) That the National Coal Board had been guilty of negligence at common law in that they had not taken proper stops to support the place where Emlyn Jones was working in that they had only put posts there, whereas they ought to have put chocks, which are well known to be much better.

8

Mr Edmund Davies, for the National Coal Board, denied those charges, and in regard to the alleged breaches of statutory duty he relied on section 103 (8) of the Act which excuses the Board from liability for damages "if it is shown that it was not reasonably practicable to avoid or prevent the breach".

9

Thus far the case raised nothing out of the ordinary for our consideration. But Mr Gardiner took a further ground of appeal which is stated in the Notice of Appeal to be "that the nature and extent of the learned Judge's Interruptions during the hearing of the evidence called on behalf of the defendants made it virtually impossible for counsel for the plaintiff to put the plaintiff's case properly or adequately or to cross-examine the witnesses called on behalf of the defendants adequately or effectively". Furthermore Mr Edmund Davies said that, in case there was any chance of our being persuaded that Mr Gardiner's three points on liability were correct, he wished himself to give a cross-notice of appeal in similar terms complaining that the Judge's interruptions prevented him from properly putting his case. We gave him leave to give a cross-notice to this effect.

10

We much regret that it has fallen to our lot to consider such a complaint against one of Her Majesty's Judges: but consider it we must, because we can only do justice between these parties if we are satisfied that the primary facts have been properly found by the Judge on a fair trial between the parties. Once we have the primary facts fairly found, we are in as good a position as the Judge to draw Inferences or conclusions from those facts, but we cannot embark on this task unless the foundation of primary facts is secure.

11

In order to consider the complaint we must state the course of the trial. Mr Mars-Jones of Counsel appeared for the plaintiff, and opened the case for her. He relied on section 49 of the Act, and said it was the duty of the Board to make the roof secure, and that the fall showed that they had not done it. In case that approach was wrong, he relied on the Support Rules and on the common law, and he made several specific criticisms in which he said that the Board had failed to do what they ought to have done. He called the widow to give evidence on damages and then an expert Mr William Charles Davies. This expert had not been down the mine but he rolled on a plan which had been made by the Board's surveyor shortly after the accident. This enabled him to make criticisms on the same lines as those opened by Mr Mars-Jones. The Judge intervened on several occasions during the examination-in-chief of Mr W.C. Davies and also his cross-examination, but this was in order to enable him to understand the technical points of the case, and cannot properly be made the subject of complaint. Mr Mars-Jones then closed his case.

12

Mr Edmund Davies, Q.C., who appeared for the National Coal Board, then called Mr John Kerr. He was the manager of the Llay Main Colliery at the time of the accident and had inspected the spot on the 19th January 1953, two days before the roof fell. He was accompanied on that occasion by H.M. Inspector of Mines, who made no complaint of the manner in which the work was being done. Mr Kerr explained to the Judge exactly what was being done to support the roof, and the Judge, naturally enough, intervened from time to time to see that he understood. Then Mr Edmund Davies began to ask Mr Kerr to deal with the criticisms which had been made by Mr Mars-Jones, and by his expert witness, Mr W.C. Davies. Now when this happened the Judge, we fear, intervened far too much. He had himself made a note of the criticisms and, in his anxiety to understand Mr Kerr's replies to these criticisms, he took the examination of the witness out of the hands of leading counsel for the rest of that day (pages 26 to 33) and of his junior counsel next morning (pages 34 to 39), Mr Mars-Jones then cross-examined the witness, but during the cross-examination the Judge intervened on several occasions to protect the witness from what he thought was a misleading question, and to bring out points in favour of the witness's point of view (pages 43,44,60,61,62,66,69,70,71,73 and 76)

13

Next Mr Edmund Davies called Mr Thomas George Davies. He was the deputy who was actually on duty on the 21st January 1953 when the accident occurred He said that he thought that the roof was secure, and he told the deceased workman and his mate to get the remainder of the coal off, and try and get another rolled steel joist up at this point. His examination-in-chief proceeded on normal lines, but during Mr Mars-Jones's cross-examination the Judge seemed to be afraid that he was being misled, and intervened at considerable length (pages 96 to 99 and 102 to 106) and in effect stopped his cross-examination on the important point of chocks (page 93). When Mr Edmund Davies re-examined, the Judge cut him short saying: "This is what has boon given again and again".

14

Then Mr Edmund Davies called the surveyor, Mr Philip Edgar Roberts, who made the plan. Nothing untoward occurred in his short evidence. Finally Mr Edmund Davies called Mr Cecil Henry Bates, an expert consultant mining engineer. We are afraid that the Judge took the examination-in-chief largely out of the hands of Mr Edmund Davies. He took the points of criticism made against the defendants, and went through them with the witness, and appeared to accept his explanations (pages 111 to 121), Mr Mars-Jones cross-examined the witness, but after a while the Judge disclosed much impatience with him (pages 128 to 131) and he brought it to a close.

15

No one can doubt that the Judge, in intervening as he did, was actuated by the best motives. He was anxious to understand the details of this complicated case, and asked questions to get them clear in his mind....

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2 firm's commentaries
  • How much can a judge intervene in cross-examination before a trial becomes unfair?
    • United Kingdom
    • JD Supra United Kingdom
    • 9 October 2017
    ...neutral The Court of Appeal considered the decisions in Southwark LBC v. Kofi-Adu [2006] EWCA Civ 281 and Jones v. National Coal Board [1957] 2 QB 55, which give guidance on what can amount to procedural unfairness. A first instance judge has wide but not unlimited discretion as to how proc......
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    • 24 May 2017
    ...neutral The Court of Appeal considered the decisions in Southwark LBC v. Kofi-Adu [2006] EWCA Civ 281 and Jones v. National Coal Board [1957] 2 QB 55, which give guidance on what can amount to procedural unfairness. A first instance judge has wide but not unlimited discretion as to how proc......
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