Kirby v National Coal Board
| Jurisdiction | Scotland |
| Judgment Date | 25 July 1958 |
| Docket Number | No. 44. |
| Date | 25 July 1958 |
| Court | Court of Session (Inner House - First Division) |
1ST DIVISION.
Lord Guthrie.
NegligenceBreach of statutory dutyCoal mineAccumulation of gas in wasteDuty to ventilateExtent of dutyCoal Mines Act, 1911 (1 and 2 Geo. V, cap. 50), sec. 29 (1).
The Coal Mines Act, 1911, enacts, by sec. 29:"(1) An adequate amount of ventilation shall be constantly produced in every mine to dilute and render harmless inflammable and noxious gases to such an extent that all shafts, roads, levels, stables, and workings of the mine shall be in a fit state for working and passing therein "
A miner was injured by an explosion of gas, or firedamp, which had accumulated in waste ground from which coal had recently been extracted. The explosion originated in the waste but spread to the face working contiguous to it. Tests showed that the face working itself was free from gas both immediately before and after the explosion.
Held that sec. 29 (1) imposed no duty to ventilate parts of the waste contiguous to working places.
Brough v. HomfrayELR, (1868) L. R., 3 Q. B. 771, andAtkinson v. MorganELR, [1915] 3 K. B. 23,considered.
NegligenceMaster and ServantCoal mineLiability of master to servant for fault of fellow servantExplosion caused by fellow servant striking match during break in work in order to light cigaretteWhether acting in course of employment.
During a temporary break in his work, one of a number of miners went into the adjacent waste ground, where he had no business to be, and struck a match in order to smoke, contrary to certain statutory provisions. A miner who was injured in a resulting explosion of gas brought an action of damages against the mineowners, on the ground that they were vicariously liable for the wrongful act of his fellow servant, which, it was averred, had been performed in the course of his employment.
Held that the act of the fellow servant had been performed outwith the course of his employment and, accordingly, that the defenders were not liable for the consequences of his fault.
Robertson v. Woodilee Coal and Coke Co., 1919 S. C. 539, 1920 S. C. (H. L.) 71, commented on.
Kenneth Kirby brought an action against the National Coal Board for damages for injuries which he had sustained as the result of an explosion of gas in Whitrigg Colliery, a mine owned and operated by the defenders. It was agreed that the action should be treated as the leading case of a series of actions brought by a number of miners who had been injured by the explosion. The mine was one in which, owing to the presence of gas, or firedamp, the use of safety lamps was obligatory, and naked lights were prohibited. The gas had been ignited by a naked light from a match struck by an unidentified miner in order to light a cigarette. The use in that part of the mine of a naked light, and the possession there of matches and cigarettes, were prohibited by statute.1 The pursuer blamed the defenders, inter alia, for a breach of section 29 (1) of the Coal Mines Act, 1911,2 in respect that they had failed to provide an adequate amount of ventilation in the section where the explosion took place, and he also alleged that they were vicariously liable for the negligence and breach of duty of the unidentified miner who struck the match.
The following narrative of the facts is taken from the opinion of the Lord President:"The accident happened during the day shift on 12th April 1954 in the North Side Main Coal Section of the colliery. The section was being worked longwall, and during the day shift coal was stripped from the coal face along a front of about 390 feet in this section and placed on conveyors for transmission to the haulage system. The roof above the workings at this face and over the conveyors which ran along the workings was supported by beams at right angles to the face, each beam being held in position by two props, one on the side of the conveyors nearer to the coal face and one on the other side of the conveyors. The strippers worked between the coal face and the conveyors, and on the other side of the conveyors the workings were allowed to subside as the work advanced. After the strippers had finished their work on the day shift, the men on the other two shifts moved the conveyors forward towards the new face and built packs of debris at intervals along the previous site of the
conveyors so as to control the gradual settlement of the excavated workings. Spaces were left between these packs. Under the system of work in operation in this section, the props between the packs were withdrawn since they were no longer required to support the roof over the strippers and conveyors, as the working had advanced beyond the point at which they need be maintained. There were three roadways running back at right angles from the coal face to the main haulage road. This haulage road ran roughly parallel to the working face. These roadways were known as the top road, the main gate road, and the bottom road. The conveyors enabled the coal to be brought from any point along the face to the end of the main gate road, along which it was then conveyed to the main haulage road, whence it was removed in hutches to the pit bottom. The ventilation system operated along the main haulage road to its junction with the top road. It passed along the top road to the face, and along the latter to the bottom road. After passing along the face, it travelled down the bottom road and out to the pit bottom by other roads. Near the pit bottom was the usual suction fan. Each stripper working at the coal face had a certain stint or length allocated to him. Those involved in this accident were men who had been working in the bottom road, and also certain strippers with stints at the bottom road end of the coal face. The end stint opposite the bottom road entry was allocated to a stripper Rodgers, the immediately adjoining stint being that allocated to the present pursuer. Beyond him again was a stint allocated to a stripper Hynds. On the morning of the accident the deputy, Stewart, had carried out an inspection for gas along the section, and had found none, sometime between 9 and 10.30 a.m.From 10 to 10.30 the strippers stopped work for an interval to have their pieces. Work began again at about 10.30, and the deputy thereafter found that the conveyor belt along the main gate road was defective. He stopped the conveyors at the face in order to mend this belt. The ignition of firedamp occurred about 11.20 a.m.while the belt in the main gate road was being mended. It appeared to have originated somewhere in the vicinity of Hynd's and the pursuer's stints, and, on expanding and encountering the oxygen in the ventilation system, spread up and down the face, injuring the pursuer and others."The pursuer pleaded, inter alia:"(1) The pursuer having suffered loss injury and damage through breach of statutory duty by the defenders, as condescended on, the defenders are bound to make reparation to him therefor." "(3) The defenders' averments that the accident was caused by the ignition of a match being irrelevant, et separatim being lacking in specification, should not be admitted to probation."
The defenders pleaded, inter alia:"(1) The pursuer's averments being irrelevant, et separatim being lacking in specification and insufficient in law to support the conclusions of the summons, the action should be dismissed." "(3) The pursuer not having suffered loss injury and damage through fault on the part of the defenders, they are entitled to decree of absolvitor."
On 18th September 1957, after a proof before answer, the Lord Ordinary (Guthrie) assoilzied the defenders.
At advising on 25th July 1958,
LORD PRESIDENT (Clyde).This is one of a series of actions brought by employees of the National Coal Board for damages in respect of injuries sustained by them as a result of the ignition of firedamp in the Whitrigg Colliery, West Lothian, which is operated by the
defenders. The Lord Ordinary, after a proof, has assoilzied the defenders. This action has been treated as the leading action of the series, and in it a reclaiming motion has been brought by the pursuer against the Lord Ordinary's interlocutorThe pit in question is one where safety lamps were obligatory owing to the risk of the presence of firedamp. Naked lights therefore were prohibited. It was admitted in the arguments before us that the ignition of firedamp was due to a naked light. The Lord Ordinary has held that this naked light came from the striking of a match by one of the men from the section in question who was engaged in lighting a cigarette. To have brought matches or cigarettes into this section was a breach of section 35 of the Coal Mines Act, 1911,29 and to use a naked light there involved a contravention of section 32 of the same Act. The Lord Ordinary's conclusion that the naked light was a match used to light a cigarette is amply warranted in the evidence, and all the alternative explanations put forward in evidence to account for the naked light were either eliminated or disbelieved. The Lord Ordinary reached his conclusion on the weight and quality of the evidence, and I do not find it necessary to review it in detail. But the consequence is that the whole basis of the case on which the pursuers in this group of actions came into Court is destroyed, and their explanation of the ignition (a spark from a hammer) disproved. Indeed, the Lord Ordinary clearly formed a most unfavourable impression of the pursuer and the eye-witnesses he adduced to support him; he refers to their obvious embarrassment when faced up in cross-examination with the finding of cigarettes and matches by officials after the accident had occurred. Indeed, he informs us that, in his opinion, the present claims have been put forward upon false grounds as a result of considerable concert among the pursuers and their witnesses as to the line of evidence which they should adopt.
In these circumstances the pursuer gave up before us several of the...
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