McVeigh v National Coal Board
| Jurisdiction | Scotland |
| Judgment Date | 06 June 1969 |
| Date | 06 June 1969 |
| Docket Number | No. 21. |
| Court | Court of Session (Inner House - First Division) |
1ST DIVISION.
Lord Stott
EvidenceSufficiencyFailure to call important witness.
A load of coal from a colliery was delivered by an independent contractor, who dumped it on the street outside the consignee's house. The consignee's wife and a friend shovelled it into a coal box in the house and a coal bunker in the garden. Two days later a boy was injured in a nearby back yard by the explosion of a detonator.
In an action of damages by the injured boy against the colliery-owners based on the averment that the detonator had, owing to the defenders' negligence, been in the load when it left the colliery, a witness gave evidence, which was not directly corroborated, that he found the detonator lying outside the coal bunker, but that he did not mention his find to another boy, who joined him shortly afterwards. The pursuer did not call that boy, or the lorrymen who delivered the coal, or the persons who shovelled it.
Held (rev. judgment of Lord Stott, diss. Lord Guthrie) that the pursuer had failed to prove that the detonator had come from the colliery, the Court commenting on the fact, as adverse to his case, that he had not called witnesses who might have given important evidence.
EvidenceOnus of proofDischargeWitness deponing negative and disbelievedWhether equivalent to affirmative deposition.
In an action of damages it was important for the pursuer to prove that, when a detonator was found, its wires were trailing from it. The only witness who deponed to the finding of the detonator testified that, when he found it, its wires were coiled round it. The Lord Ordinary doubted the truth of this part of his evidence.
Observed by Lord Migdale that the Lord Ordinary's doubt about the credibility of the witness on this point did not justify the inference that the wires were trailing when the detonator was found.
DamagesDelictPersonal injuriesMeasure of damagesBoy of ten suffering extensive injuries to right hand.
As the result of an accident a boy of ten, who was right-handed, lost half the thumb and most of the index finger of his right hand, with loss of all tissues on one side of the middle finger. He had two operations, and a third would probably be necessary. He would never be able to undertake fine work and the capacity of his right hand to stand up to heavy work was uncertain. In an action of damages for these injuries the Lord Ordinary awarded him 1200.
Observed in the Inner House, where the Lord Ordinary's judgment on the merits was reversed, that 2500 would have been an appropriate award.
John M'Veigh, with the consent and concurrence of his father, Anthony M'Veigh, brought an action of damages against the National Coal Board.1 The circumstances, so far as material to this report, are summarised in the rubrics, and are fully narrated, along with the relevant evidence, in the opinions of the judges.
On 1st November 1968, after a proof before answer, the Lord Ordinary (Stott) awarded the pursuer 1200 in name of damages.
At advising on 6th June 1969,
LORD PRESIDENT (Clyde).This is an action brought by a boy of ten against the National Coal Board in respect of an injury to his hand resulting from the explosion of an electrically fired detonator. After a proof the Lord Ordinary found in his favour and assessed the damages at 1200. The defenders have presented this reclaiming motion against the Lord Ordinary's finding of liability against them, and the pursuer has taken advantage of the reclaiming motion to argue that, if the defenders are liable, the damages awarded by the Lord Ordinary are too small.
I shall deal first with the question of liability. The pursuer's case is that on the day in question another boy, Pearson, visited a school friend, John Gribbon, in order to borrow some wire for an aerial for a transistor set. Young Gribbon went into the house to find the wire and meantime Pearson looked about outside the house, and, according to Pearson, he found pieces of wire behind the outside coal bunker in the garden. One of these pieces of wire was wrapped round something concealed within it, which turned out later to be an electrically operated detonator. Young Gribbon brought him some wire, which Gribbon had found in the house, and Pearson took it away. He did not tell Gribbon that he had also found and removed the rolled-up detonator.
Pearson then met the pursuer in the street and asked for a loan of money to buy a battery. The pursuer bought the battery and they took it to the back of Pearson's house, where M'Veigh was shown the detonator and leads. He held the detonator while Pearson attached the wires leading from it to the battery, when the detonator exploded, injuring M'Veigh.
The case made by the pursuer is that the rolled-up detonator had been delivered to the Gribbons' house in a consignment of domestic coal which came from Whitrigg Colliery. The main issue in the case is whether it is established on the evidence that the detonator which Pearson says he appropriated from behind the coal bunker at the Gribbons' house came there in a consignment of coal from Whitrigg Colliery. It is not in dispute that, if this is not established, or if the detonator was deposited behind the coal bunker in its wrapped-up condition by some third party for some purpose of his own, the defenders must succeed.
It is proved that Mr Gribbon, the father of the boy Gribbon, was a miner employed at Whitrigg Colliery. He was, as such, entitled to concessionary coal, and two days before the accident a ton of such coal had been uplifted from Whitrigg Colliery by an independent contractor and dumped on the pavement outside Gribbon's house. Gribbon was working that day and, when he returned home, he ascertained that his wife and a neighbour had shovelled the coal from the pavement into an inside coal box and also into the outside coal bunker in the garden.
The pursuer has not, of course, proved affirmatively that the detonator was in the ton of coal when it left the control of the defenders on an independent contractor's lorry. The lorry-men were not called as witnesses, and there is no evidence at all regarding what other loads were on the lorry or where else it had called that day. These electrically operated detonators are manufactured by I.C.I. and are used extensively at several collieries in the neighbourhood and also apparently in quarries. No witness speaks to seeing any foreign body in the coal when it was dumped off the lorry on to the pavement at Gribbon's house.
This might not have been of much importance if the evidence was that Pearson ultimately found the detonator among the coal in the outside coal bunker at Gribbon's house. But the peculiarity of the present case is that he did not find it there but separated from the consignment of coal and rolled up in wire behind the coal bunker. To connect this detonator with the consignment of coal from Whitrigg Colliery the vital stage is clearly the two days from the time when the contractor deposited the coal on the pavement at Gribbon's house, when according to the pursuer the detonator must have formed part of the pile, and the time when, according to Pearson, he found the detonator separated from the bulk of the coal with the wires carefully wound round it behind the back of the bunker.
The evidence in regard to this vital period is singularly meagre and confusing. Pearson is the only witness who speaks to the rolled-up detonator being found behind the coal bunker. His friend Gribbon junior was not called as a witness and does not therefore corroborate him. Neither Mrs Gribbon nor the neighbour who helped her to shovel in the coal from the pavement to the bunker was brought as a witness and no satisfactory explanation of this omission was given to us. If the detonator was in fact in the coal when it was delivered at the house, it is difficult to see how these two ladies failed to observe it when they were shovelling the coal across the garden into the coal bunker, but there is no evidence that they did see it. Indeed the other evidence contradicts this contingency. On the day following the delivery of the coal at his house Gribbon says he inspected the coal bunker, looked inside and shut the lid. When he did so, he saw nothing round about the bunker, and there was no wire or coil of wire behind the bunker. Something must have happened, therefore, if Pearson really found the detonator where he says he did, between the delivery of the coal and the visit by Pearson, to bring the detonator into the place where Pearson says he found it.
Within about two hours of the accident a policeman M'Taggart examined the locus. He stated that behind the coal bunker there was a box with wire in it. This evidence was not challenged in cross. If these two witnesses (Gribbon senior and M'Taggart) are to be believedand the Lord Ordinary made no criticism of their evidencethey establish that someone was interfering with the situation behind the coal bunker after the concessionary coal had been deposited in it and before Pearson's visit to it. This would tend to disassociate the detonator from the concessionary coal from Whitrigg.
There are two other factors which have a bearing on this matter. In the first place, Gribbon's garden, where the bunker was situated, is not wholly private and enclosed. It is open to the adjoining house, and third parties had easy access to it. In the second place, the condition of the detonator and its wires is of some importance. According to Pearson, when he found it, the wires were round the detonator, so that it could not be seen. The evidence shows that this is not the condition in which electric detonators come from the factory. When delivered from the factory, the detonator is exposed and the wires are not bound round it. Moreover, its condition was such as to exclude its having been used under pit conditions. On the contrary, the parcelling up of the wires round the detonator and the depositing...
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