National Coal Board v England
| Jurisdiction | UK Non-devolved |
| Judge | Lord Porter,Lord Oaksey,Lord Reid,Lord Tucker,Lord Asquith of Bishopstone |
| Judgment Date | 25 February 1954 |
| Judgment citation (vLex) | [1954] UKHL J0225-1 |
| Date | 25 February 1954 |
| Court | House of Lords |
[1954] UKHL J0225-1
Lord Porter
Lord Oaksey
Lord Reid
Lord Tucker
Lord Asquith of Bishopstone
House of Lords
Upon Report from the Appellate Committee, to whom was referred the Cause National Coal Board against England, that the Committee had heard Counsel, as well on Monday the 18th, as on Tuesday the 19th, Wednesday the 20th and Thursday the 21st, days of January last, upon the Petition and Appeal of the National Coal Board, whose principal office is situate at Hobart House, Grosvenor Place, in the County of London, S.W.1, 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 27th of April 1953, might be reviewed before Her Majesty the Queen, in Her Court of Parliament, and that the said Order 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 printed Case of Henry George England, 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 27th day of April 1953, complained of in the said Appeal, be, and the same is hereby, Varied by reducing the sum to be awarded to the Plaintiff by way of damages from £2,400 to £1,800, and that, subject to such Variation, the said Order of the 27th day of April 1953 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 Cause be, and the same is hereby, remitted back to the Queen's Bench Division of the High Court of Justice, to do therein as shall be just and consistent with this Judgment: And it is further Ordered, That the Appellants do pay, or cause to be paid to the said Respondent, the Costs awarded to him in the Court of Appeal, such Costs to include the Costs of the Action in the King's Bench Division of the High Court of Justice: And it is also further Ordered, That each party do bear and pay their own Costs of the Appeal to this House.
My Lords,
This is an appeal by the National Coal Board, who were the Defendants in the action, from an Order of Her Majesty's Court of Appeal whereby it was ordered that the appeal of the Respondent (the Plaintiff in the action) be allowed, that the Judgment of the Honourable Mr. Justice Croom-Johnson be set aside and that Judgment be entered for the Respondent for £2,400 with costs.
The case arises out of an injury sustained by the Respondent on the 25th day of January, 1950, when employed underground as a collier in the Appellants' Bwllfa Colliery, Aberdare. He assisted a shotsman (one Edward Williams) to prepare to fire a shot in that colliery firstly by ramming a hole with explosive charge and then by connecting the charge to the firing apparatus by means of a cable. Before doing so the Respondent said to the shotsman: "I will couple up, Ted", and he replied: "O.K., Harry". The Respondent then began to couple up the four loose ends of the cable to the detonator wires while the shotsman went back toward the firing apparatus uncoiling the cable as he went. When the Respondent had connected one cable end to one of the detonator wires and was in the act of connecting the other end of the cable to the other end wire of the detonator, the charge was exploded by the shotsman with the result that the Respondent suffered severe injuries.
Eventually he issued a writ against the Appellants claiming damages for negligence, breaches of statutory duty under the Coal Mines Act, 1911 and the Regulations thereunder.
In his pleadings the Respondent alleged that the Appellants, their servants or agents were in breach of Regulations 2 ( e) and ( h) of the Explosives in Coal Mines Order, 1934 and that Edward Williams, the shotsman, was negligent in firing the shot without ensuring that no one was in the vicinity or that those near had taken shelter, in not giving warning to the Respondent, in inviting or permitting the Respondent to connect the cable to the detonator and in failing to allow time for the Respondent to reach a position of safety before firing the shot. Regulations 2 ( e) and ( h) are in the following terms:—
"( e) The person firing the shot shall, before doing so, see that all persons in the vicinity have taken proper shelter, and he shall also take suitable steps to prevent any person approaching the shot …
( h) Where shots are fired electrically they shall only be fired by a person authorised in writing by the manager for the purpose. The authorised person … shall himself couple up the cable to the fuse or detonator wires and shall do so before coupling the cable to the firing apparatus. He shall take care to prevent the cable coming into contact with any power or lighting cables. He shall also couple the cable to the firing apparatus. Before doing so, he shall see that all persons in the vicinity have taken proper shelter."
As a further ground of claim it was alleged that the Respondent, in accordance with the prevailing practice, of which the Appellants knew or ought to have known, coupled the cable to the detonator wires, and that the Appellants took no steps to prevent that practice.
The Appellants, while denying that the accident was caused In any negligence or breach of statutory duty by them or their servants or agents, admitted that the shotsman did not himself couple up the cable to the detonator wires as required by the 1934 Order and also that the Respondent (being then a person in the vicinity of the shot) had not taken shelter at the material time. They alleged, however, that the Respondent's injuries were caused or contributed to by his own negligence or breach of statutory duty; that he had by his conduct voluntarily accepted and impliedly consented to run the risk of injury resulting therefrom; and that his injuries had been sustained in consequence of his own illegal act in coupling up the detonator wires to the cable, or by his acting pursuant to an illegal agreement between him and the shotsman to contravene the 1934 Order. The Appellants further relied upon the provisions of sections 75 and 102 (8) of the Coal Mines Act, 1911. Those sections provide—
"75. Any person who contravenes or does not comply with any of the provisions of this Part of this Act shall be guilty of an offence against this Act, and, in the event of any contravention of or non-compliance with any of the provisions of this Part of this Act by any person whomsoever, the owner, agent, and manager of the mine shall each be guilty of an offence against this Act, unless he proves that he had taken all reasonable means by publishing and to the best of his power enforcing those provisions to prevent that contravention or non-compliance."
"102.—(8) The owner of a mine shall not be liable to an action for damages as for breach of statutory duty in respect of any contravention of or non-compliance with any of the provisions of this Act if it is shown that it was not reasonably practicable to avoid or prevent the breach."
As the Respondent was ill and unable to attend the trial of his case, his proof of evidence was by consent read as the evidence he would have given, subject to the stipulation that none of the statements contained in it were to be taken as admitted. The shotsman Williams was not called.
A number of witnesses on behalf of the Respondent deposed to a practice in that colliery of colliers helping the shotsmen and firemen by coupling up the cable to the detonator. They admitted, however, that they knew that they were doing wrong and that they had never carried out this practice in the presence of the manager or under-manager.
The Appellants did not challenge the evidence that a number of shotsmen and firemen had over a substantial period of time acquiesced and participated in carrying on this practice.
It was common ground, however, that both the shotsmen Williams and the Respondent had contravened the 1934 Order by their conduct on the day of the accident.
The case was tried by Mr. Justice Croom-Johnson, who found that the accident happened as described above; that a number of colliers employed in the colliery at varying times disobeyed the 1934 Order, that they knew that by their disobedience they were doing that which they ought not to have done and that their acts were forbidden by that Order; that the Respondent in coupling up the ends was contravening it, and knew that his action contravened it and was forbidden; that the shotsman, Williams, also contravened the Order; that the attention of any manager of the mine had never been called to the practice of the colliers to couple up the leads and that there was no evidence that anybody in "any position of responsibility" as far as the Appellants were concerned knew of the practice; that all persons in authority under the Appellants had taken all reasonable means to prevent the contravention of the 1934 Order and that the Appellants had sufficiently published it.
With regard to the claim for negligence, the learned Judge held that, in as much as in his view the Appellants did not know that colliers were coupling up the leads, it could not be alleged that they or their servants failed to take any proper steps to prevent a practice of which they were ignorant. With regard to the claim for breach of statutory duty, the learned Judge declared that he would adopt what he considered to be the effect of the obiter dicta of your Lordships' House in the case of Harrison v. National Coal Board [1951] Appeal Cases, 639. He said that as all due care had been taken by the Appellants...
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