Marshall v Gotham Company Ltd
| Jurisdiction | UK Non-devolved |
| Judge | Lord Oaksey,Lord Reid,Lord Tucker,Lord Cohen,Lord Keith of Avonholm |
| Judgment Date | 01 April 1954 |
| Judgment citation (vLex) | [1954] UKHL J0401-4 |
| Date | 01 April 1954 |
| Court | House of Lords |
[1954] UKHL J0401-4
Lord Oaksey
Lord Reid
Lord Tucker
Lord Cohen
Lord Keith of Avonholm
House of Lords
Upon Report from the Appellate Committee, to whom was referred the Cause Marshall against Gotham Company Limited, that the Committee had heard Counsel, as well on Monday the 1st, as on Tuesday the 2d, Wednesday the 3d, and Thursday the 4th, days of March last, upon the Petition and Appeal of Nellie Constance Marshall (Widow) (on her own behalf and as Administratrix of the Estate of George William Marshall, deceased), of 14 Dragwell, Kegworth, in the County of Leicester, praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of Her Majesty's Court of Appeal of the 21st of November 1952, so far as therein stated to be appealed against, might be reviewed before Her Majesty the Queen, in Her Court of Parliament, and that the said Order, so far as aforesaid, might be reversed, varied or altered, and that the Petitioner might have the relief prayed for in the Appeal, or such other relief in the premises as to Her Majesty the Queen, in Her Court of Parliament, might seem meet; as also upon the printed Case of the Gotham Company Limited, 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 Order of Her Majesty's Court of Appeal, of the 21st day of November 1952, 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.
My Lords,
I have come to the conclusion, after some hesitation and with much sympathy for the Appellant, that the judgment of the Court of Appeal is right.
The question to be decided is whether the death of the Appellant's husband was caused by the failure of the Respondents to take reasonably practicable steps to secure the roof of the gypsum mine in which he was working.
The deceased man was working in the Respondents' gypsum mine when the roof fell on him and killed him, and the fall of the roof was due to slickenside.
Slickenside is a rare geological fault which is due to air getting in to the roof and causing a fall. It cannot be detected by any ordinary method of inspection or sounding, and it had never been found in the Respondents' mine for 20 years before the accident in question. The ordinary practice is to sound the roof by tapping with a hammer or other utensil and, if it sounds what is called "drummy", to bring it down, but where slickenside occurs the roof does not sound "drummy" and there was no known way of detecting it. In consequence the Respondents, following the ordinary practice, had sounded the roof with hammers at the place of the accident, and finding it was not drummy had allowed the deceased and his mate, who was called as a witness, to proceed with their work.
After the accident the Respondents found that the slickenside was present from, or more or less from, the point at which the accident had happened for some considerable distance, and in consequence, where they thought the roof appeared dangerous, they refrained from working underneath it; where they thought it doubtful they propped it up with pneumatic props, and if they found it to be "drummy" they brought it down as before.
In these circumstances the Appellant contended, and Mr. Justice Jones held, that the Respondents, in not taking the precautions which they took after the accident, had failed to take reasonably practicable steps to keep the roof secure before the accident, and that this failure was the cause of the deceased's death.
I agree with the Court of Appeal that it was not reasonably practicable to take such steps when slickenside had never occurred in the mine for the last 20 years. The position before the accident and the position after the accident are two quite different things. The question is not simply whether it was practicable as a matter of engineering but whether it was reasonably practicable when no such thing as slickenside had occurred in the mine for at any rate 20 years or even been heard of by many experienced miners although it is a known geological fault. I agree with the speech of Lord Atkin in Coltness Iron Company, Limited v. Sharp [1938] A.C. 90 at p. 93, where he said:
"In the facts of this case where the dangerous machinery was exposed for only a few minutes as the only means of effecting necessary repairs in a part of the mine where it was unlikely that any workman would be exposed to risk of contact with the machine other than the engineer engaged in the work of repair, I am unable to take the view that it was reasonably practicable by any means to avoid or prevent the breach of s. 55. The time of non-protection is so short, and the time, trouble and expense of any other form of protection is so disproportionate that I think the defence is proved."
That is to say, what is "reasonably practicable" depends upon a consideration whether the time, trouble and expense of the precautions suggested are disproportionate to the risk involved. It is conceded in the present case that it was not reasonably practicable to make the roof secure by timbering, and to have attempted to make it secure by pneumatic props in some places and by leaving it unmined in others when no slickenside had ever occurred for a period of 20 years was not, in my judgment, reasonably practicable.
I agree with what Lord Justice Jenkins said:
"To my mind that which is 'reasonably practicable' in this context is no more nor less than what is capable of being done to make roofs and sides secure within the limits of what it is reasonable to do; and it cannot be reasonable to do for this purpose anything more than that which it appears necessary and sufficient to do according to the best assessment of what is necessary and sufficient that can be made at the relevant time, that is, in the present instance a point of time immediately prior to the accident."
Some argument was addressed to your Lordships' House as to the onus of proof, but as all the evidence is before your Lordships and the Respondents accepted the position that the onus was on them to show that reasonably practicable steps had been taken, I do not think it is necessary to decide this question. At the same time, I must say that, in my opinion, it is clear that the obligation upon the Respondents was not an absolute obligation to make the roof secure but was a qualified obligation to make it secure so far as was reasonably practicable. Nor do I find it necessary to decide whether, if the Respondents had been in breach of their obligation, it would have been right to hold that the deceased's death was caused by their breach.
For these reasons I would dismiss the appeal.
My Lords,
The Appellant's husband was killed by a fall of the roof at the place where he was working in the Respondents' gypsum mine, and this action was brought to recover damages from the Respondents. The only ground of liability now maintained is that the death of the deceased was caused by a breach of a statutory duty of the Respondents.
The Metalliferous Mines General Regulations, 1938, made by the Board of Trade under powers contained in the Coal Mines Act, 1911, and the Mining Industry Act, 1920, provide that the regulations set out in that order shall be in substitution for the provisions contained in the general rules in section 23 of the Metalliferous Mines Regulation Act, 1872. Section 23 provides:
"The following general rules shall, so far as may be reasonably "practicable, be observed in every mine to which this Act applies …",
and it is common ground that that part of section 23 continues to apply so as to qualify all the regulations contained in the 1938 order. Regulation 7 (3) in that order provides:
"The roof and sides of every travelling road, outlet, and working place shall be made secure, and no person, unless engaged in repairing or in investigating the safety of the workings shall travel on or work in any travelling road or working place which is not so made secure";
and reading this with the initial part of section 23 of the 1872 Act it must mean that so far as may be reasonably practicable the rule shall be observed that the roof and sides of every travelling road, outlet, and working place shall be made secure, etc. The fact that the roof fell shows that it had not been made secure, and the question in this case, therefore, is whether, on the facts proved, the qualification "so far as may be reasonably practicable" applies.
The strata in this mine are more or less horizontal. First there is a stratum of gypsum some six or eight feet thick, then above that a thin stratum of marl less than two feet thick, then above that a thin and harder stratum of gypsum about two feet thick known as ball rock, and above that a thicker stratum of marl some four feet thick. The method of mining is first to extract as much as possible of the lower stratum of gypsum. From a main road faces are driven into the gypsum at right angles to the direction of the road. Then as each face recedes holes are driven at intervals parallel to the main road. This leaves untouched a regular series of pillars of gypsum which support the roof. At that stage the roof is the thin stratum of marl. At a later stage the ball rock is brought down by drilling holes in it and firing shots: that leaves the upper and thicker stratum of marl as the roof.
The marl roof is never supported by timbering or otherwise. It is regularly tapped with a hammer to see whether it is safe. If tapping gives a "dummy" or "drummy" sound that shows that that piece of marl is loose and it is...
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