Sanderson v National Coal Board
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE HOLROYD PEARCE,LORD JUSTICE UPJOHN,LORD JUSTICE DONOVAN |
| Judgment Date | 18 May 1961 |
| Judgment citation (vLex) | [1961] EWCA Civ J0518-2 |
| Date | 18 May 1961 |
| Court | Court of Appeal |
[1961] EWCA Civ J0518-2
In The Supreme Court of Judicature
Court of Appeal
Lord Justice Holroyd Pearce
Lord Justice Upjohn and
Lord Justice Donovan.
Appellant
Respondents
Mr P. STANLEY-PRICE, Q.C. and Mr A.W. LYON (instructed by Messrs Corbin, Greener & Cook, Agents for Messrs Raley & Pratt, Barnsley) appeared on behalf of the Appellant (Plaintiff).
Mr MARVEN EVERETT. Q.C. and Mr J.R. PICKERING (instructed by Mr Donald H. Haslam, Agent for Mr C.M.H. Glover, Doncaster) appeared on behalf of the Respondents (Defendants).
: The Plaintiff appeals against a Judgment of the learned Judge of the Wakefield County Court dismissing a claim for damages for personal injuries founded on negligence and breach of statutory duty. The Plaintiff was employed as a packer in the Defendants' colliery. He was working with a mate underground at the face of a seam 2-ft.6 high branching off from the main gate. The only light was his cap light. A conveyor was moving gradually along the face where he was working towards the main gate where the main conveyor ran outby. He was packing with stones brought on the branch conveyor that ran beside him. One or more of the hooks which joined together the 60 segments of the conveyor's 260 yards of endless belt came unfastened and prejected, so that as the conveyor went past the Plaintiff where he crouched they caught his leg and dragged him. There was or should have been a beltman at the junction of the branch conveyor and the main conveyor, but the Plaintiff'e shouts were unheard. The conveyor was therefore allowed to run unchecked. The Plaintiff had to hold on to an upright to stop himself being dragged towards the rollers at the end of the branch conveyor, and the hooks were thus torn out of his leg, causing injury.
The Plaintiff's case, supported by his evidence and that of his fellow packer, was that the beltman was not at his post at the end of the branch and main conveyors. The Defendants' case was supported by a deputy and the beltman. According to the beltman's evidence, he had been doing his duty; it would have been very wrong for him to leave the belt. Part of the beltman's work was to look for defects in the belt. If he saw anything suspicious or any loose hook, he always stopped the belt. Sometimes, he said, he had to turn away from the belt, as his eyes could not look at it all the time without straining them. According to the Defendants' evidence, the condition of the belt after the accident, apart from hooks sticking out, was satisfactory. The Plaintiff admitted that hooks come loose regularly. If they are not too bad, he said, the beltman cuts the corner off the belt where they have come loose and lets the belt go on. It is the beltman's Job to repair the belt.
The Judge accepted that the belt wae in satisfactory condition, but it was conceded at the trial (in ray view rightly) by Defendants' Counsel that projection of the hooks was a patent defect under Section 81(1). The Judge found common law negligence was not proved, and against that finding there is no appeal. He found that the Defendants were in breach of Section 8l(l) of the Mines and Quarries Act, 1954, but that they escaped liability by virtue of Section 157. As to the disputed facts, the Judge said: "There were two witnesses against two witnesses and on the material parts of the evidence, the witnesses clashed violently. On the disputed matters, the Plaintiff has failed to satisfy me. I cannot say one way or the other who is lying. I do not know which side to believe". Therefore, so far as disputed matters are concerned, nothing was proved by either side. It is equally possible that the beltman was absent and negligent or that he was present and doing his duty.
The material words of Section 81(1) of the Act are as follows: "All parts and working gear… shall be of good construction, suitable material, adequate strength and free from patent defect, and shall be properly maintained". The material words of Section 157 are: "It shall be a defence in any legal proceedings to recover damages,… in so far as the proceedings… are based on an allegation, of a contravention, in relation to a mine or quarry, of a provision of this Act,… to prove that it was impracticable to avoid or prevent the contravention".
The Judge was right in holding that the Plaintiff had proved injury caused by a breach of Section 81(1). It was argued before us by the Defendants that the Plaintiff had failed to prove that hie injury was caused by a breach, for the hook might have broken loose immediately before the accident and there would then, at the moment of the accident, have been no patent breach, since there was no-one who could have seen it and there was no practical possibility of remedying it. A defect, it is argued, is not patent when there was no-one to see it. It vae not proved by the Plaintiff that there was any appreciable interval between the extrusion of the hook and the accident, and it is said that unless it was proved that there was time for anyone to observe or mend the hook, the Defendants are not liable.
Reliance xvas sought to be placed on Brown v. National Goal Board, 1960 3 Weekly Law Reports, 892, But that case is not comparable, for it dealt with the position under another section which lays on the manager personally a duty to take steps. Such a personal duty involves a different conception from the impersonal unqualified provision that all working gear shall be free from patent defect and shall be properly maintained.
In Hamilton v. National Coal Board, 1960 Appeal Cases, 633, the House of Lords held that liability under Section 81(1) was absolute. Lord Simonds, at page 639, said: "This is what is sometimes called an absolute...
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